Greene and Secretary, Department of Social Services (Social services second review) - [2024] AATA 811

Greene and Secretary, Department of Social Services (Social services second review) [2024] AATA 811 (19 April 2024)
Division:GENERAL DIVISION
File Number(s):2021/4468
Re:Di Greene
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:19 April 2024
Place:Brisbane

The Tribunal affirms the decisions under review.
........................[SGD]..........................
Member D Mitchell

Catchwords
SOCIAL SECURITY – Family Tax Benefit – Child Care Benefit – overpayment – where no sole administrative error – where no special circumstances – decision under review affirmed
Legislation
A New Tax System (Family Assistance) Act 1999 (Cth)
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)
Cases
Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25
Boscolo v Secretary, Dept of Social Security[1999] FCA 106; (1999) 90 FCR 531
Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114
Gerhardt and Department of Employment, Education and Training [1996] AATA 173
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 Stubbs and Secretary, Department of Families and Community Services (2003) AATA 03/0729
Rofail and Secretary, Department of Social Services [2022] AATA 2317
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 Security v Hales [1998] FCA 219
Secretary, Department of Social Services and Gilmartin [2022] AATA 723
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
REASONS FOR DECISION
Member D Mitchell
19 April 2024
INTRODUCTION

On 18 June 2021, Mrs Di Greene (the Applicant) sought review by this Tribunal of decisions made by the Respondent to raise and recover family tax benefit and child care benefit debts in relation to the 2008-2009 to 2013-2014 financial years (excluding the 2011-2012 financial year).[1]
[1] Exhibit 1, T Documents, T2, pages 3-7, Application for Review.
The decisions under review are the decisions of the Social Services and Child Support Division (SSCSD) of the Tribunal dated 18 May 2021.[2] On that date, the SSCSD affirmed the Respondent’s decisions to:[3]
[2] Exhibit 1, T Documents, T3, pages 8-19, Decision of the SSCSD.
[3] Exhibit 1, T Documents, T3, pages 8-19, Decision of the SSCSD.
(a)raise a family tax benefit debt of $13,495.10 for the 2008-2009 financial year;
(b)raise a child care benefit debt of $1,762.24 for the 2008-2009 financial year;
(c)raise a family tax benefit debt of $4,766.90 for the 2009-2010 financial year;
(d)raise a child care benefit debt of $1,964.90 for the 2009-2010 financial year;
(e)raise a family tax benefit debt of $3,712.79 for the 2010-2011 financial year;
(f)raise a child care benefit debt of $1,245.30 for the 2010-2011 financial year;
(g)raise a family tax benefit debt of $3,454.65 for the 2012-2013 financial year;
(h)raise a child care benefit debt of $439.26 for the 2012-2013 financial year;
(i)raise a family tax benefit debt of $3,824.50 for the 2013-2014 financial year;
(j)raise a child care benefit debt of $168.34 for the 2013-2014 financial year; and
(k)to recover those debts in full.
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).
BACKGROUND
In 2007 the Applicant gave birth to her daughter[4] and sometime during that year her husband’s two older children also came into their care.[5]
[4] Exhibit 1, T Documents, T28, page 1390, Centrelink mainframe screens.
[5] Exhibit 1, T Documents, T2, page 6, Applicant for review and T3, page 15, Decision of the SSCSD.
On 25 February 2009, the Applicant contacted the Respondent regarding a claim for child care benefits (CCB) for approved child care for her daughter, which was granted from

5 January 2009.[6] The Respondent has recorded that the Applicant provided a 2008-2009 income estimate of nil for herself and nil for her husband. The Respondent’s file note records that “clt and ptr meet the work and rebate test – started seo and will be a loss in 08/09 financial year”.[7]
[6] Exhibit 1, T Documents, T6, page 210, Income estimate report.
[7] Exhibit 1, T Documents, T5, page 210, Income estimate report.
On 3 March 2009, the Applicant contacted the Respondent regarding her claim for Family Tax Benefit (FTB) which was granted from 1 July 2008.[8] The Respondent’s file note recorded:[9]
2008/2009 estimate provided – clt nil income ptr $12,000 taxable – no other income. Confirmed with clt on phone today that ptr received a big payout in 07/08 financial year of $127,000, and is now self-employed so $12,000 in 08/09 is correct – clt believes it may be less clt elected to receive ftb all with yes to cont adjustment
[8] Exhibit 1, T Documents, T6, page 211, Income estimate report.
[9] Exhibit 1, T Documents, T6, page 211, Income estimate report.
The Applicant was sent a notice to confirm her claim of 3 March 2009 for FTB.[10] The notice states:[11]
Your estimate income details for the 2008/2009 financial year Taxable income $0… Partner estimated income details for the 2008/2009 financial year Taxable income $12,000.
[10] Exhibit 1, T Documents, T26, page 369, Centrelink letters to the Applicant for period 28 November 2008 to 2 February 2021.
[11] Exhibit 1, T Documents, T26, page 370, Centrelink letters to the Applicant for period 28 November 2008 to 2 February 2021.
On 16 March 2009, a notice was sent to the Applicant outlining that the calculation of her payment was based on her combined income of $10,063.[12]
[12] Exhibit 1, T Documents, T26, page 378, Centrelink letters to the Applicant for period 28 November 2008 to 2 February 2021.
On 8 April 2009, the Respondent recorded that the Applicant contacted it to update her income details for the 2008-2009 financial year and advised $0 income for herself and $12,000 for her husband (less child maintenance of $1,937), resulting in a combined income of $10,063.[13] It was also recorded that the Applicant was advised to provide a new financial year estimate for 2009-2010.[14]
[13] Exhibit 1, T Documents, T27, page 671, Centrelink customer contact file notes.
[14] Exhibit 1, T Documents, T27, page 672, Centrelink customer contact file notes.
That same day a notice was sent to the Applicant advising that her CCB would be calculated relying on the combined income estimate she provided of $10,063.[15]
[15] Exhibit 1, T Documents, T26, page 385, Centrelink letters to the Applicant for period 28 November 2008 to 2 February 2021.
On 15 April 2009, the Respondent recorded that the Applicant contacted it for Family Assistance Office (FAO) assessment purposes and made the following updates:[16]
-    Her income increased for 2008-2009 to $2,500, her husband’s income remained the same and her new combined income was $12,563; and
-    Her income increased to $10,700 for 2009-2010, her husband’s income remained the same and her new combined income was $20,763.
[16]    Exhibit 1, T Documents, T27, page 677, Centrelink customer contact file notes.
On 6 May 2009 and 1 June 2009, notices were sent to the Applicant advising her that her regular FTB payments were being calculated relying on the combined income of $12,563 as per the update she provided on 15 April 2009.[17]
[17] Exhibit 1 T Documents, T26, pages 394 and 403, Centrelink letters to the Applicant for period 28 November 2008 to 2 February 2021.
On 9 June 2009, the Respondent contacted the Applicant to discuss her current combined income estimate of $12,563, noting it was low for an income support customer plus earnings, however it is recorded that no change was notified.[18]
[18] Exhibit 1, T Documents, T27, page 691, Centrelink customer contact file notes.
On 8 June 2009, 18 June 2009 and 14 July 2009, the Respondent sent notices to the Applicant advising her that her regular FTB payments were being calculated relying on the combined income of $20,763 as per the update she provided on 15 April 2009.[19]
[19]
On 26 August 2009, the Respondent recorded that the Applicant contacted it to discuss her tax return and noted that the 2008-2009 income tax return for her husband was still with the accountant.[20]
[20] Exhibit 1, T Documents, T27, page 704, Centrelink customer contact file notes.
On 30 September 2009, the Respondent recorded that:
·The Applicant contacted it regarding FTB for the 2007-2008 financial year and was advised she had no entitlement for that year due to being over the combined income threshold.[21]
·The estimate for the 2009-2010 financial year was checked and no change was required, the Applicant had a business and was self-employed.[22]
·The Applicant contacted it regarding her parenting payment claim at which time her income estimate was checked and no update was provided.[23]
[21]    Exhibit 1, T Documents, T7, page 112, Income estimate report.
[22]    Exhibit 1, T Documents, T7, page 112, Income estimate report.
[23]    Exhibit 1, T Documents, T27, page 713, Centrelink customer contact file notes.
On 11 February 2010, the Respondent recorded that the Applicant contacted it and upon being asked about her and her husband’s income tax returns advised that her husband would be lodging a tax return for the 2008-2009 financial year with the ATO shortly.[24]
[24] Exhibit 1, T Documents, T27, page 715, Centrelink customer contact file notes.
On 14 April 2010, the Respondent undertook a reconciliation and the Applicant’s actual income was checked against her estimated income for the 1 July 2008 to 30 June 2009 period.[25] The Respondent’s notes record that the Applicant’s actual income was $0 and her husband’s actual income was $189,501 (less $1,937 maintenance), resulting in a combined actual income of $187,564.[26] The estimated income recorded by the Respondent as having been provided by the Applicant was $10,063 up until 14 April 2009 and $12,563 from

15 April 2009.[27]
[25]    Exhibit 1, T Documents, T27, page 729, Centrelink customer contact file notes and T28, pages 829-867, Centrelink mainframe screens.
[26]    Exhibit 1, T Documents, T27, page 729, Centrelink customer contact file notes.
[27]    Exhibit 1, T Documents, T28, page 836, Centrelink mainframe screens.
On the same day, the Respondent sent the Applicant an account payable notice advising that her entitlement to FTB in 2008-2009 had been checked using her actual family income.[28] The Applicant was notified that a FTB debt of $13,495.10 had been raised for the 2008-2009 financial year.[29] The debt was calculated on the basis that the Applicant’s family income for the financial year was above the income threshold and therefore she had no entitlement to FTB.[30]
[28]    Exhibit 1, T Documents, T9, page 216, Account payable – Family Tax Benefit debt 2008-2009 and T27, page 729, Centrelink customer contact file notes.
[29]    Exhibit 1, T Documents, T9, page 216 Account payable – Family Tax Benefit debt 2008-2009 and T27, page 729 and T27, page 729, Centrelink customer contact file notes.
[30]    Exhibit 1, T Documents, T9, page 216, Account payable – Family Tax Benefit debt 2008-2009 and T27, page 729, Centrelink customer contact file notes.
On the same day, the Respondent sent the Applicant an account payable notice advising that her entitlement to CCB in 2008-2009 had been checked using her actual family income.[31] The Applicant was notified that a CCB debt of $1,762.24 had been raised for the 2008-2009 financial year of which an amount of $1,222.25 was automatically withheld from the child care tax rebate to reduce the balance of the debt.[32] The debt was calculated on the basis that the Applicant’s family income for the financial year was above the income threshold and therefore she had no entitlement to CCB.[33]
[31]    Exhibit 1, T Documents, T8, page 213, Account payable – Child Care Benefit det 2008-2009.
[32]    Exhibit 1, T Documents, T8, page 213, Account payable – Child Care Benefit det 2008-2009.
[33]    Exhibit 1, T Documents, T8, page 213, Account payable – Child Care Benefit det 2008-2009.
On 6 May 2010, the Respondent invited the Applicant to update her family income estimate for the 2010-2011 financial year.[34] The Respondent’s letter set out that the Applicant was able to update an amount with the Respondent, or to use her previous income estimates, increased in line with changes in the Australian Average Weekly Earnings of $21,801.[35]
[34] Exhibit 1, T Documents, T26, page 445, Centrelink letters to the Applicant for period 28 November 2008 to 2 February 2021.
[35] Exhibit 1, T Documents, T26, page 445, Centrelink letters to the Applicant for period 28 November 2008 to 2 February 2021.
On 14 May 2010, the Respondent sent the Applicant a notice advising FTB was being calculated using a combined income of $20,763 in accordance with her previous notification.[36]
[36] Exhibit 1, T Documents, T26, page 448, Centrelink letters to the Applicant for period 28 November 2008 to 2 February 2021.
On 29 June 2010, the Respondent sent the Applicant a notice advising that her FTB was being calculated using combined income of $21,801.[37] The notice stated that the Applicant should tell the Respondent about changes to her income:[38]
An overpayment is likely to occur where you underestimate your income. To avoid an overpayment it is important that you provide a reasonable estimate and notify the Family Assistance Office whenever your income changes.
[37] Exhibit 1, T Documents, T26, page 451, Centrelink letters to the Applicant for period 28 November 2008 to 2 February 2021.
[38] Exhibit 1, T Documents, T26, page 451, Centrelink letters to the Applicant for period 28 November 2008 to 2 February 2021.
On 1 December 2010, the Respondent sent a request to the Applicant for a new income estimate for the purposes of her FTB and CCB for the 2010-2011 financial year .[39] The notice stated:[40]
You should take a full year view of your family's financial circumstances when estimating your income. If you overestimate your income and are underpaid during the year, your Family Tax Benefit and/or Child Care Benefit will be topped up to your full entitlement after the end of the financial year. If your actual income is more than you estimated and you have been paid too much, you will have to repay any Family Tax Benefit and/or Child Care Benefit that you should not have been paid. You must provide a new estimate within 14 days or your Family Tax Benefit and/or Child Care Benefit will be affected. This is a notice under section 158 of the A New Tax System (Family Assistance) (Administration) Act 1999
[39] Exhibit 1, T Documents, T26, page 464, Centrelink letters to the Applicant for period 28 November 2008 to 2 February 2021.
[40] Exhibit 1, T Documents, T26, page 465, Centrelink letters to the Applicant for period 28 November 2008 to 2 February 2021.
On 30 December 2010, the Respondent asked the Application to provide a new estimate of her total family income.[41] The notice was issued pursuant to section 158 of the

FA Administration Act and outlined what the Applicant should take into account in making her estimate and the potential consequences of under-estimating her income.[42]
[41] Exhibit 1, T Documents, T26, page 478, Centrelink letters to the Applicant for period 28 November 2008 to 2 February 2021.
[42] Exhibit 1, T Documents, T26, page 477, Centrelink letters to the Applicant for period 28 November 2008 to 2 February 2021.
On 21 December 2010, the Respondent recorded that the Applicant contacted it updating her income estimate for the 2010-2011 financial year. The Applicant advised that her combined income estimate was $50,035, being $11,235 for her and $38,800 for her husband.[43]
[43] Exhibit 1, T Documents, T10, page 218, Income estimate report.
On 10 January 2011, the Respondent recorded that the Applicant contacted it updating her income estimate for the 2010-2011 financial year. The Applicant advised that her combined income estimate was $22,635, being $11,235 for her and $12,600 for her husband.[44]
[44] Exhibit 1, T Documents, T11, page 219, Income estimate report.
On 7 March 2011, the Respondent sent the Applicant an Income Statement, confirming her combined income estimate of $22,635 and advising her that she must update it of any changes within 14 days.[45]
[45] Exhibit 1, T Documents, T26, page 499, Centrelink letters to the Applicant for period 28 November 2008 to 2 February 2021.
On 29 April 2011, the Respondent invited the Applicant to update her family income estimate for the 2011-2012 financial year.[46] The Respondent’s letter set out that she was able to provide an estimate of her family income by 14 June 2011 or could use the income estimate the Respondent calculated being $23,609. The notice outlined the risk of overpayment:[47]
Are you at risk of overpayment?
Our records show that your partner's estimate used to determine your rate of Family Tax Benefit and Child Care Benefit is less than your partner's most recent actual annual family income.
An overpayment can occur where the actual annual family income is higher than your estimate for the relevant financial year. Please consider revising your estimate for 2011-2012 to make sure you receive your correct family assistance.
[46] Exhibit 1, T Documents, T26, page 523, Centrelink letters to the Applicant for period 28 November 2008 to 2 February 2021.
[47] Exhibit 1, T Documents, T26, page 523, Centrelink letters to the Applicant for period 28 November 2008 to 2 February 2021.
On 30 May 2011, the Respondent sent the Applicant an Income Statement confirming her combined income estimate of $22,635 for 2010-2011 and notified her that she must update it of any changes within 14 days.[48]
[48] Exhibit 1, T Documents, T26, page 530, Centrelink letters to the Applicant for period 28 November 2008 to 2 February 2021.
On 28 October 2011, the Respondent undertook a reconciliation to check the Applicant’s entitlements to FTB and CCB for the 2009-2010 financial year on the basis that she had not lodged her tax returns.[49] The Applicant’s combined income used in the reconciliation was $38,073 with nil income for the Applicant and $38,073 for her husband.[50] Consequently, a non-lodger FTB debt of $4,766.90[51] and CCB debt of $1,964.90[52] was raised.
[49]    Exhibit 1, T Documents, T28, pages 880-987, Centrelink mainframe screens.
[50]    Exhibit 1, T Documents, T28, page 939, Centrelink mainframe screens.
[51]    Exhibit 1, T Documents, T28, page 880, Centrelink mainframe screens.
[52]    Exhibit 1, T Documents, T28, page 1173, Centrelink mainframe screens.

On 31 October 2011, the Respondent sent an Account Payable text to the Applicant outlining a FTB debt of $4,766.90[53] and CCB debt of $1,964.90[54] in relation to the

2009-2010 financial year.
[53] Exhibit 1, T Documents, T13, page 221, Account payable – Family Tax Benefit debt 2009-2010.
[54] Exhibit 1, T Documents, T12, page 220, Account payable – Child Care Benefit debt 2009-2010.
On 10 February 2012, the Respondent recorded that the Applicant contacted it as her family assistance entitlements had been cancelled. Her payments were restored after she provided a new family estimate. The Applicant’s reviewed estimate was $10,000 for herself and $40,000 for her husband, resulting in a combined income estimate of $48,748 (after child maintenance had been subtracted).[55]
[55] Exhibit 2, Supplementary T Documents, ST 1, page 2, Archived file notes.
On 19 April 2012, the Respondent re-reconciled the Applicant’s 2009-2010 entitlements following the receipt of actual confirmation of income from the lodgement of tax returns.[56] The Applicant’s combined actual income for the 2009-2010 financial year was $63,098, including $25,025 for the Applicant and $38,073 for her husband.[57] The FTB and CCB debts remained unchanged.
[56] Exhibit 1, T Documents, T28, page 880, Centrelink mainframe screens.
[57] Exhibit 1, T Documents, T28, page 892, Centrelink mainframe screens.
On 24 September 2012, the Respondent recorded that the Applicant made contact to update her income details for the 2012-2013 financial year from September 2012. The Applicant provided an income estimate of $10,380 for herself and $31,500 for her husband, resulting in a combined estimated income of $40,980 (after child maintenance had been subtracted).[58]
[58] Exhibit 2, Supplementary T Documents, ST 1, page 1, Archived file notes.
On 25 October 2012, the Respondent reconciled the Applicant’s entitlement to FTB and CCB for the 2010-2011 financial year.[59] The Applicant’s actual combined income was $79,947, including $35,752 for her and $44,195 for her husband.[60] This resulted in an FTB debt of 3,712.79[61] and CCB debt of $1,245.30[62] being raised for the 2010-2011 financial year.
[59]    Exhibit 1, T Documents, T28, pages 979 and 1245, Centrelink mainframe screens.
[60]    Exhibit 1, T Documents, T28, page 1008, Centrelink mainframe screens.
[61]    Exhibit 1, T Documents, T28, page 980, Centrelink mainframe screens.
[62]    Exhibit 1, T Documents, T28, page 1245, Centrelink mainframe screens.
On the same day, the Respondent sent the Applicant an Account Payable notice raising a FTB debt of $3,712,79 for the 2011-2011 financial year.[63] The Applicant had received $11,869.53 in FTB and as a result of the reconciliation was found to have only been entitled to receive $8,167.74.[64]
[63] Exhibit 1, T Documents, T15, page 227, Account payable – Family Tax Benefit debt 2010-2011.
[64] Exhibit 1, T Documents, T15, page 227, Account payable – Family Tax Benefit debt 2010-2011.
On the same day, the Respondent sent the Applicant an Account Payable notice raising a CCB debt of $1,245.30 for the 2011-2011 financial year.[65] The Applicant had received $7,412.44 in CCB and as a result of the reconciliation was found to have only been entitled to receive $6,167.14.[66]
[65] Exhibit 1, T Documents, T14, page 222, Account payable – Child Care Benefit debt 2010-2011.
[66] Exhibit 1, T Documents, T14, page 222, Account payable – Child Care Benefit debt 2010-2011.
On 30 April 2013, the Respondent invited the Applicant to update her family income for the 2013-2014 financial year. The Respondent’s letter set out that she was able to provide a new estimate of her family income or rely on the estimate it had calculated being $42,865.[67]
[67]
On 1 May 2013, the Respondent sent a notice to the Applicant notifying her that her FTB had been calculated based on a combined income estimate of $40,980 as notified by her on 24 September 2012.[68]
[68]
On 25 June 2013 and 27 June 2013 the Respondent sent notices to the Applicant to advise of her CCB entitlement and noted that it had been calculated relying on an estimated combined income of $42,865 in accordance with the notice sent on 30 April 2013.[69]
[69]
On 25 June 2013, the Respondent sent a notice to the Applicant to advise of her FTB entitlement and noted that it had been calculated relying on an estimated combined income of $42,865 in accordance with the notice sent on 30 April 2013.[70]
[70]
On 27 June 2013, the Respondent recorded that the Applicant made contact regarding her daughter commencing school. The Respondent’s file note indicates that the FAO estimate was checked and was okay.[71]
[71] Exhibit 1, T Documents, T46, page 1153, Centrelink customer contact file notes.
On 10 July 2013, the Respondent notified the Applicant that she was required to lodge her and her husband’s income tax returns or notify that they were not required by 1 July 2014. The notice advised that if this was not actioned a debt would be raised for the 2012-2013 financial year.[72]
[72] Exhibit 1, T Documents, T26, page 553, Centrelink letters to the Applicant for period 28 November 2008 to 2 February 2021.
On 12 November 2013, the Respondent raised a non-lodger debt in relation to the Applicant’s 2011-2012 family assistance.[73] A debt of $12,535.50 was raised on the basis that the Applicant and her husband had not lodged income tax returns which in turn meant she was not entitled to any of the FTB she had received.[74]
[73] Exhibit 1, T Documents, T44, page 1432, Centrelink debt lists and debt calculations,
[74] Exhibit 1, T Documents, T44, page 1433, Centrelink debt lists and debt calculations.
On 25 February 2014, the Respondent recorded that the Applicant made contact and was advised of “re IPP” and non-lodger debts due to the 2012-2013 income tax returns not being completed.[75] The Respondent submitted that the reference to “IPP” was likely a typographical error and had intended to state “PIP” which is a prohibition of FTB instalment payments on the basis of outstanding non-lodger debts.[76]
[75] Exhibit 1, T Documents, T46, page 1555, Centrelink customer contact file notes.
[76] Respondent’s Consolidated Statement of Facts, Issues and Contentions, page 8, paragraph 3.45.
On 11 November 2014, the Respondent raised a non-lodger FTB debt of $11,925.65 for the 2012-2013 financial year as the Applicant and her husband had not lodged their income tax returns by 1 July 2014.[77]
[77] Exhibit 1, T Documents, T44, page 1457, Centrelink debt lists and debt calculations.
On 7 April 2015, the Respondent recorded that the Applicant made contact enquiring about the new debts, and, that she was advised that the debts related to non-lodgement of tax returns.[78]
[78] Exhibit 2, Supplementary T Documents, ST 1, page 1, Archived file notes.
On 10 November 2015, the Respondent reconciled the Applicant’s 2013-2014 financial year family assistance entitlements and raised a non-lodger FTB debt of $6,021.26.[79]
[79] Exhibit 1, T Documents, T28, page 1076, Centrelink mainframe screens.
On 20 October 2016, the Respondent, re-reconciled the Applicant’s 2013-2014 financial year entitlements as the Applicant had lodged income tax returns. The re-reconciliation relied upon the actual combined income of $85,496 resulting in an FTB debt of $3,824.50[80] and a CCB debt of $168.34.[81]
[80] Exhibit 1, T Documents, T28, pages 1026 and 1036, Centrelink mainframe screens.
[81] Exhibit 1, T Documents, T28, page 1317, Centrelink mainframe screens.
On the same day, the Respondent sent the Applicant an Account Payable notice raising a CCB debt of $168.34 for the 2013-2014 financial year.[82] When checked against her actual combined income for the 2013-2014 financial year the Applicant had received $406.27 in CCB and was only entitled to $237.93.[83]
[82] Exhibit 1, T Documents, T16, page 231, Account payable – Child Care Benefit debt 2013-2014.
[83] Exhibit 1, T Documents, T16 page 231, Account payable – Child Care Benefit debt 2013-2014.
On 26 October 2016, the Respondent sent the Applicant an Account Payable notice raising a FTB debt of $3,824.50 for the 2013-2014 financial year.[84] When checked against her actual combined income for the 2013-2014 financial year the Applicant had received $6021.26 in FTB and was only entitled to $2,196.76.[85]
[84] Exhibit 1, T Documents, T17, page 235, Account payable – Family Tax Benefit debt 2013-2014.
[85] Exhibit 1, T Documents, T17 page 235, Account payable – Family Tax Benefit debt 2013-2014.
On 1 February 2019, the Applicant lodged a review of the non-lodger and reconciliation debts direct to the SSCSD. The review was referred to an Authorised Review Officer (ARO) for consideration.[86]
[86] Exhibit 1, T Documents, T18, page 238, Contact note – request for review.
On 5 July 2019, an ARO decided to set aside the Applicant’s non-lodger debts in relation to the 2011-2012 and 2012-2013 financial years, a well as a Schoolkids bonus debt on the basis that the relevant tax returns had been lodged.[87] The ARO provided:[88]
Please note: Your Family Tax Benefit entitlement for these financial years will be reconciled based on your and your partner’s actual incomes. You will be notified of the outcome of these reconciliations separate to this decision.
[87] Exhibit 1, T Documents, T34, page 1402, Decision and Notes of Authorised Review Officer.
[88] Exhibit 1, T Documents, T34, page 1402, Decision and Notes of Authorised Review Officer.
On 16 July 2019, an ARO decided to affirm the decision under review in relation to the FTB and CCB debts for the 2008-2009, 2009-2010, 2010-2011 and 2013-2014 financial years.[89]
[89] Exhibit 1, T Documents, T19, page 239, Decision and Notes of Authorised Review Officer.
On 25 July 2019, the Respondent, consistently with the ARO’s decision of 5 July 2019, re-assessed the Applicant’s FTB and CCB for the 2011-2012 financial year on the basis of her actual combined income following the lodgement of tax returns. The re-assessment resulted in a small positive adjustment in favour of the Applicant.[90]
[90] Exhibit 1, T Documents, T35, page 1406, Letter: Centrelink to Applicant – About your Child Care payments for 2011-12; T39, page 1419, Letter: Centrelink to Applicant - About your Family Tax Benefit 2011-12 and T44, pages 1452 and 1454, Centrelink debt lists and debt calculations.
On 25 July 2019, the Respondent also adjusted the Applicant’s non-lodger debts for the 2012-2013 financial year to nil and re-reconciled her entitlements based on the family income of $57,290 which resulted in an overpayment of $3,454.65.[91] The Applicant’s CCB entitlements were reassessed on the same basis and an overpayment of $439.26 was raised.[92]
[91] Exhibit 1, T Documents, T36, page 1409, Account payable – Family Tax Benefit debt 2012-2013.
[92] Exhibit 1, T Documents, T37, page 1413, Account payable – Child Care Benefit debt 2012-2013.
On 25 July 2019, the Respondent notified the Applicant the Schoolkids Bonus overpayment of $1,230 was no longer recoverable.[93]
[93] Exhibit 1, T Documents, T38, page 1417, Letter: Centrelink to Applicant – Your Schoolkids Bonus Reassessment.
On 26 August 2019, the Respondent applied interest charges to all of the Applicant’s outstanding FTB and CCB debts.[94]
[94] Exhibit 1, T Documents, T40, page 1422, Letter: Centrelink to Applicant – interest charge.
On 2 February 2021, the Applicant sought review of the ARO decisions made on
[95] Exhibit 1, T Documents, T20, page 247, Application for Review of Decision to SSCSD.
16 July 2019 relating to the 2008-2009, 2009-2010, 2010-2011 and 2013-2014 by the SSCSD.[95]
On 8 February 2021, the Applicant sought review of the ARO decisions made on

5 July 2019 relating to the 2012-2013 debts by the SSCSD.[96]
[96] Exhibit 1, T Documents, T41, page 1424, Application for Review of Decision and T42, page 1428, Letter: SSCSD to Centrelink – request for statement.
On 18 May 2021, the SSCSD affirmed both ARO decisions in relation to the FTB and CCB debts raised for the 2008-2009, 2009-2010, 2010-2011, 2012-2013 and 2013-2014 financial years.[97]
[97] Exhibit 1, T Documents, T3, pages 8-19, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of these matters by the General Division of the Tribunal by way of application dated 18 June 2021.[98]
[98] Exhibit 1, T Documents, T2, pages 3-7, Application for Review of Decision.
A Hearing was conducted in this matter on 24 May 2023. At the Hearing the Applicant appeared in person and was assisted by her husband, Mr Geoffrey Greene (Mr Greene).
ISSUES
The issues for the Tribunal to consider are whether:
1.
the Applicant was paid more than her correct amount of family tax benefit and child care benefit during the 2008-2009 to 2010-2011 and

2012-2013 to 2013-2014 financial years (debt period); and if so
2.the excess payments are debts to the Commonwealth; and if so
3.they are recoverable in part or in full.
CONSIDERATION
Did the Applicant receive the correct amount of FTB during 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 FA 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. The rate calculator for FTB takes into consideration the individual’s adjusted taxable income and maintenance entitlement and includes the standard rates of FTB, relevant supplement and rent assistance benefits.
Section 41 of the FA Act provides the requirements for when an individual is eligible for CCB and refers to those provisions of the FA Act which are relevant in working out the individual’s rate of CCB.
Subdivision B of Division 4 of Part 4 of the FA Act provides that a person’s rate of CCB is calculated in accordance with the Rate Calculator in Schedule 2 to the FA Act. The rate calculator for CCB takes into consideration the individual’s adjusted taxable income, number of children and whether they are of school age, kind of care and hourly rate for a session of care.
Schedule 3 to the FA Act provides that the “adjusted taxable income” of an individual for FTB and CCB purposes for an income year, where the individual is a member of a couple, includes the adjusted taxable income for that year of the individual’s partner.
Where it is determined that an individual is eligible to receive FTB and CCB, their rate is calculated and the general proposition is that a reconciliation will be undertaken to ensure the person is paid the correct amount of FTB and CCB during the relevant period. The reconciliation is undertaken giving consideration to the total adjusted taxable income for the financial year in question.
Section 20 of the FA Administration Act enables the Respondent to use an estimate of a person’s adjusted taxable income to determine their initial eligibility for and rate of FTB. The determination about the rate of payment based on that estimate remains in force until another determination is made.[99]
[99] Sections 16 and 21 of the FA Administration Act.
Sections 25 and 56C of the FA Administration Act place obligations on FTB and CCB recipients to report to the Respondent any changes in their circumstances that would mean they were not eligible for FTB or CCB or were entitled to a different rate.
Sections 25A and 57 of the FA Administration Act provides that the Respondent must by written notice notify the recipient of the approved manner of notification of such change of circumstances.
Sections 71 to 71D of the FA Administration Act provide that if a person has been paid an amount of FTB or CCB to which they were not entitled, the overpayment is a debt due to the Commonwealth by the person.
It is not in dispute that the Applicant was in receipt of FTB and CCB during the debt period.
The evidence before the Tribunal outlines that at various times during the debt period the Applicant and/or her husband, were receiving employment income and that their income was not during the debt period fully taken into account when determining her rate of FTB and CCB.[100]
[100] Exhibit 2, Supplementary T Documents, ST3, page 19, Table of entitlements, debts, income and estimates and extract of debt balances.
The Applicant and her husband’s income tax returns and notices of assessment for the debt period confirm their income[101] and are not in dispute.
[101] Exhibit 2, Supplementary T Documents, ST6, pages 34-76, Income tax returns and notices of assessment for the applicant and Mr Greene for relevant income years.
A table prepared by the Respondent setting out entitlements, debts, income and estimates and an extract of debt balances at 28 January 2022 is set out at Annexure A to this decision.[102]
[102] Exhibit 2, Supplementary T Documents, ST3, page 19, Table of entitlements, debts, income and estimates and extract of debt balances.
The Applicant disputed the debt calculations provided by the Respondent on the basis that she had not been provided with all relevant details to enable her to be satisfied that the Respondent’s calculations were correct. The Applicant requested explanations of the debt calculations on numerous occasions in the period since the debts were raised by the Respondent. The Tribunal notes that throughout the Tribunal process the Applicant made many submissions and requests for information in relation to the debt calculation for the debt period.[103]
[103] Exhibit 6, Applicant’s request for Further and Better Particulars.
To assist both the Tribunal and the Applicant to understand the Respondent’s debt calculations the Tribunal at the conclusion of the Hearing directed that the Respondent to provide a clear explanation of the debt calculations together with written closing submissions.
Obtaining detailed debt calculations in relation to the FTB and CCB debts raised by the Respondent for the debt period proved to be a difficult task requiring telephone direction hearings to be conducted and further directions to be issued post hearing.
As a result on:
·
3 August 2023, the Respondent provided Closing Submissions together with an

11-page document, titled Explanation of Debt Calculations.
·28 August 2023, the Applicant provided Closing Submissions in Reply. The Applicant outlined her concerns in relation to the explanation of the debt calculations provided by the Respondent.
·11 September 2023, a telephone directions hearing was conducted. The Tribunal sought that the Respondent provide a full explanation of the debt calculations for the debt periods that outlined in a clear manner the calculation of the Applicant’s entitlement to FTB and CCB during the debt periods.
·3 October 2023, the Respondent provided a 2-page document titled Summary table of calculations.
·
24 October 2023, a further telephone directions hearing was conducted. The Tribunal sought that the Respondent explain the document provided on

3 October 2023 and how it met the requirements of the direction in place.
·14 November 2023, the Respondent provided an eighteen-page document, titled Debt Calculations together with a sixteen-page document titled, Additional CCB Records for 2012-13 Financial Year.
·29 November 2023, the Applicant provided additional closing submissions in reply.
·2 February 2024, the Respondent provided further closing submissions.
The Tribunal notes that in the Applicant’s additional closing submissions she submitted that it was not available to the Tribunal to find that the debts were proven as set out by the Respondent without particularised details as to the repayments made by her through either garnishee or direct repayments.[104]
[104] Applicant’s Additional Closing Submissions in Reply to the Respondent’s Debt Calculations & Additional CCB Records for 2012-13 Financial Year, page 1, paragraphs 1.4-1.5.

The Applicant further submitted that she:[105]
…. is unable to verify the accuracy of and/or reasons for all of the ‘Debt Calculations’ provided by the Respondent and establish if such payments were received by the Applicant and/or Childcare Providers, however considering the paragraphs above, the Applicant leaves it to the Tribunal to being satisfied as to the accuracy of those calculations.
[105] Applicant’s Additional Closing Submissions in Reply to the Respondent’s Debt Calculations & Additional CCB Records for 2012-13 Financial Year, page 2, paragraph 1.8.
The Tribunal notes the evidence before it clearly indicates that in calculating the Applicant’s rate of FTB and CCB during the debt period, her and her husband’s income was not fully taken into consideration. While the Applicant contended that she was not aware of how her FTB and CCB were calculated or that she was getting the incorrect amount, it does not detract from the fac,t that, had the correct adjusted taxable income been taken into consideration, the rate of FTB and CCB she was paid would have been different. Both FTB and CCB are means tested.
Having reviewed the available income tax returns provided by the Australian Taxation Office, the Tribunal accepts the Applicant and Mr Greene’s adjusted taxable income for each of the financial years during the debt period, as calculated by the Respondent.[106]
[106] Exhibit 2, Supplementary T Documents, T6, pages 34-76, Income tax returns and notices of assessments for the Applicant and her husband for the debt period.
Based on the debt calculations provided by the Respondent on 14 November 2023 and having considered those calculations in conjunction with the entirety of the evidence before it, the Tribunal is satisfied that the FTB and CCB debts for the debt period have been correctly calculated.
As such, pursuant to sections 71 to 71D of the FA Administration Act, the Tribunal finds that the amount of FTB and CCB the Applicant has been overpaid during the debt period is a debt owed to the Commonwealth.
Having worked through the FTB and CCB debt calculations, the Tribunal notes the complexity of the calculations, particularly in circumstances where the Applicant’s entitlement related to more than one child and where the Applicant did not have 100% care of all of the children during particular periods. While the Tribunal notes that the Applicant submitted that she could not verify whether the amounts the Respondent says she was paid (or for CCB purposes were paid to the child care provider) are correct, the Tribunal is satisfied based on the evidence before it that the identified payments had been made by the Respondent.
Further, while the Tribunal understands that it is important for the Applicant to know what her outstanding debt is, that is not a matter that impacts upon the Tribunal’s role in this matter. The Tribunal is required to be satisfied that a debt exists and in such cases what the quantum of such a debt is, it is not reviewing whether the outstanding balance of any such debts are correct.
Are the Applicant’s FTB and CCB debts repayable in part or in full?
As the Tribunal has found that the FTB and CCB debts exist for 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 debts is either put on hold for a period of time (written off) or are no longer pursued (waived). Relevant to the Applicant’s FTB and CCB debts, the Respondent may write off, or waive, her FTB or CCB debts for the debt period if the requirements set out in sections 95, 97 or 101 of the FA Administration Act are met.
Should the debts 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 sections 95(2), 95(4A) or 95(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.
The Respondent contended that there is no basis to write off the Applicant’s FTB and CCB debts for the debt period as there is no evidence that the debts are irrecoverable at law and because the Applicant has capacity to repay the debts.[107]
[107] Exhibit 5, Respondent’s Consolidated Statement of Facts, Issues and Contentions, page 18-19, paragraphs 4.30-4.32.
Based on the evidence before it, the Tribunal is satisfied that the Applicant’s FTB debts are recoverable at law, her 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 debts.
The Tribunal notes that the Applicant has provided details of her financial position throughout the review process and on 12 June 2023 provided updated details with respect to her financial and health situation.[108] The Applicant provided further updated financial and health information in her closing submissions.[109] The evidence before the Tribunal indicates that the Applicant’s financial situation at the time of the Hearing and throughout the filing of subsequent submissions was straitened. The Applicant however did not make direct submissions in relation to the application of section 95 of the FA Administration Act to her circumstances, rather her submissions were focused on the FTB and CCB debts being waived on the basis of sole administrative error or special circumstances.[110]
[108] Applicant’s Submission on Financial Circumstances and Health.
[109] Applicant’s Closing Submissions, page 3, paragraphs 2.1-2.8.
[110] Exhibit 3, Applicant’s Amended Application for Review; Exhibit 7, Applicant’s Submission in Reply to the Respondent’s Statmeen3t of Facts, Issues and Contentions, page 4, paragraph 22; and Applicant’s Closing Submissions in Reply to the Respondent’s Closing Submissions, pages 4-9, paragraphs 3.8-4.1.13.
While it accepts that the Applicant’s financial position is strained, there is insufficient corroborating evidence before it to allow the Tribunal to be satisfied that recovery of the FTB and CCB debts via a payment plan acceptable to both parties would cause her severe financial hardship. The Applicant has not provided submissions or supporting evidence to show that she is unable to meet her financial commitments.
As such, based on the evidence before it, the Tribunal finds that the Applicant has capacity to repay the debts and while her financial circumstances are difficult, based on the evidence before it, the Tribunal is not satisfied that recovery of her FTB and CCB debts would cause her severe financial hardship.
Consequently, the Tribunal finds that the Applicant’s FTB and CCB debts cannot be written off pursuant to section 95 of the FA Administration Act.
Should the debts 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 debts solely attributable to an administrative error made by the Respondent.
The duty to waive a debt does not extend to those debts which are attributable to errors or other factors which are independent of the Respondent’s administrative error. For the purpose of section 97 of the FA Administration Act the word ‘solely’ is to be given its ordinary meaning as ‘only’ and ‘to the exclusion of all else’.[111]
[111] Gerhardt and Department of Employment, Education and Training [1996] AATA 173 at [36].
Section 97 of the FA Administration Act provides:
(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.
Essentially for a debt attributable to sole administrative error to be waived section 97(2) of the FA Administration Act requires that the person would suffer financial hardship if the debt was not waived where the debt was raised within one financial year of the financial year in which the overpayment occurred. In contrast where the debt was raised outside of that period the person is not required to demonstrate they would suffer severe financial hardship if the debt was not waived. In both circumstances the person must have received the payment that gave rise to the administrative error proportion of the debt in good faith.
The Tribunal accepts the Respondent’s contention that:[112]
(a)section 97(2) of the FA Administration Act applies to the Applicant’s FTB and CCB debts for the 2008-2009; 2009-2010; 2012-2013 and 2013-2014 financial years; and
(b)section 97(3) of the FA Administration Act applies to the Applicant’s FTB and CCB debts for the 2010-2011 financial year.
[112] Exhibit 5, Respondent’s Consolidated Statement of Facts, Issues and Contentions, page 20, paragraph 4.36.
The Respondent submitted that it accepts the Applicant had received the payments that gave rise to the FTB and CCB debts for the debt period in good faith. The Respondent accepted that the Applicant was in a novel situation in claiming family assistance benefits, with a new child and also her husband’s children in her care.[113] Based on the evidence before it, the Tribunal agrees with that submission.
[113] Exhibit 5, Respondent’s Consolidated Statement of Facts, Issues and Contentions, pages 23-25, paragraphs 4.52-4.57.
In making findings in relation to the application of section 95 of the FA Administration Act to the Applicant’s circumstances the SSCSD stated:[114]
[114] Exhibit 1, T Documents, T3, pages 15-17, paragraphs 29-36, SSCSD Decision.
29.The tribunal considered whether, at the time of the hearing, there was any reason to waive recovery of the debts in full or in part. There are limited provisions in the FA Administration Act for waiving the right to recover all or part of a debt. Subsections 97(1) to (4) of the FA Administration Act relate to waiver on the grounds of sole administrative error on the part of the Commonwealth. In summary, in respect of FTB and CCB debts, under section 97 of the FA Administration Act as well as the debt having to be solely due to administrative error on the part of the Commonwealth, it is also necessary that the person received the funds in good faith and that recovery of the debts would cause severe financial hardship.
30.During the hearing [the Applicant] told the tribunal that she believes that these debts were caused by administrative error on the part of Centrelink. She said that Centrelink had been correctly informed of Mr Greene’s income during the debt period and that, if she had known that it was an issue, she would have ceased all support from the Government and not continued to use child care at the time.
31.[The Applicant] outlined her recollection of events for the tribunal. She said that In 2007 her child was born and Mr Greene’s other two children also came into her care. She said that she had had no experience with Centrelink prior to this, but with three young children coming into her care in a short space of time, she decided to apply for FTB and subsequently CCB. [The Applicant] out that she had provided full income details for herself and Mr Greene to Centrelink in her original FTB and CCB claims. In terms of updating her income details, she said she couldn’t recall providing income estimates to Centrelink many times during the debt period and that her entitlements seemed to be calculated automatically at the time. She also said that Centrelink was made fully aware at the time that Mr Greene was working and so she didn’t understand how Centrelink could have recorded such low income amounts for Mr Greene during the debt period.
32.The tribunal notes that Centrelink documents contain multiple records setting out details of the income estimates [the Applicant] reported for herself and Mr Greene during the debt period which were used to calculate her FTB and CCB entitlements at the time. These include the following income estimate reports provided by [the Applicant] to Centrelink:
Centrelink documents 2021/B158212:
-report provided on 25 February 2009 (page 744);
-report provided on 3 March 2009 (page 748);
-report provided on 30 September 2009 (page 797);
-report provided on 21 December 2010 (page 830);
-report provided on 10 January 2011 (page 832).
Centrelink documents 2021/B158361:
-report provided on 10 February 2012 (page 201);
-report provided on 24 September 2012 (page 207).
33.These reports record that [the Applicant] advised Centrelink that both she and Mr Greene became self-employed during the debt period and, on this basis, Centrelink officers accepted the low estimates of income that she provided at the time. During the hearing [the Applicant] acknowledged that Mr Greene received a large payout in 2008/09 and commenced contract work. The tribunal notes that this is consistent with the advice that Centrelink recorded she provided about their employment and income circumstances at the time.
34.The tribunal is satisfied that [the Applicant] did provide various income estimates for family assistance purposes in each year of the debt period, as set out in the table in paragraph 18 of these Reasons. However, unfortunately all of the income estimates that [the Applicant] provided to Centrelink significantly understated her actual combined income at the time.
35.During the hearing the tribunal also pointed to several letters that Centrelink sent to [the Applicant] during the debt period which set out the details of her payments and the basis on which her entitlements had been calculated. The tribunal noted that these letters included details of the combined income amounts used to determine [the Applicant’s] entitlements at the time. For example, a letter dated 10 June 2011 (2021/B158212: page 1055) advises that [the Applicant’s] FTB at the time was based on a combined income of $22,635. The Centrelink documents contain a number of other similar letters which were sent to [the Applicant] during the debt period showing the combined income used to calculate her entitlements. The tribunal notes that these letters advise the recipient to check the information carefully and contact Centrelink within 14 days if the information is incorrect or their circumstances have changed. During the hearing [the Applicant] said that she does not recall seeing these letters and/or looking at them in detail. There is no evidence that [the Applicant] contacted Centrelink during the debt period to query her payments and/or the information set out in these letters. The tribunal considers that these letters should have alerted [the Applicant] to the fact that her combined income was not correctly recorded and therefore her FTB entitlements were not being correctly calculated.
36.In relation to all of the debts under review, the tribunal is satisfied that the overpayments did not occur because of sole administrative error on the part of the Commonwealth. Rather, the tribunal finds that the debts arose because [the Applicant] did not provide accurate income estimates for herself and Mr Greene during the debt period and she did not contact Centrelink to query any of the incorrect income details set out in the letters she received during the debt period.
In the Applicant’s Amended Application for Second Review of Decision dated

14 December 2022, she provided the following:[115]
[115] Exhibit 3, Applicant’s Amended Application for Second Review of Decision.
I dispute the findings as detailed in paragraph 36 and 44 of the decision for the following reasons:
(1)Income calculations, and estimates used by Centrelink in the original application were wrong and based on information not provided by me.
(2)I did not advise Centrelink at the time of application or at any other time that my husband, Geoffrey Greene, had no (zero) income. At the time of my application, he was a PAYG employee and his income and salary was known, or ought to have been known by Centrelink.
(3)At the time of application, I sought Family Tax Benefits for the three children namely: [Redacted]
(4)In the Secretary's Statement of Issues, Facts and Contentions, it appears that Family Tax Benefits were only awarded for [the daughter], although they had noted the other two children in our care at p3.1 "her husbands two older children" and had therefore incorrectly recorded the application sought by me from Centrelink being Family Tax Benefit for all three children.
(5)This failure to recognise and make Family Tax Benefits for the other two children also affected the amounts of benefits I was entitled to receive with a significant shortfall estimated at some $62,000 not received based on calculation data available, but subject to verification.
(6)This failure to include the other two children would also lead to an incorrect threshold for income calculation as a result.
The evidence provided to the first AAT review is correct in that the circumstances the funds were received, were in good faith. With no previous knowledge of the Centrelink system, there was no basis to believe there was any error. The circumstances surrounding the good faith receipt, was that both Mr Greene's two children from a previous relationship [Redacted] came into our care at or around the same time as the birth of [their daughter]. (This is outlined at paragraph 31 of the decision of the AAT)
Furthermore, that had any error in the income estimates been identified and advised at a much earlier time i.e. at the time of the ATO providing such information to Centrelink, then this would have resolved the error before it had escalated over several years. This has further added to the unjust, and unfair nature of the determination of a debt.
The consequences resulting in relation to Childcare are outlined accurately at paragraph 30 of the decision.
Notwithstanding that Centrelink had sent our documents relating to payments, these were received as information only, and not easily interpreted or understood, and not that such an error had been made or that a debt was being accrued.
……

The Respondent contended that the Applicant’s FTB and CCB debts for the debt period did not result from administrative error. The Respondent contended that:[116]
[116] Exhibit 5, Respondent’s Consolidated Statement of Facts, Issues and Contentions, pages 21-23, paragraphs 4.39-4.51.
4.39. The Secretary does not accept the debts are attributable to any administrative error of the Commonwealth. Moreover,
·the Applicant provided multiple income estimates, as evidenced in file notes and income summary details (see ST4), and the Agency relied upon these estimates in calculating her entitlements;
·the Applicant was notified in writing of the income estimates that were consequently relied upon, or, where she failed to update the estimate, the income estimate as calculated by the Agency;
·in those notices, the Applicant was advised to notify the Agency if her family income was incorrect or changes;
·the Applicant’s actual income once known, was greater in each financial year than the income estimates she had provided, and consequently reconciliation resulted in debts, and;
·the Applicant was notified with account payable notices in all debts within one financial year of the financial year in which the overpayment occurred, except for the 2010/2011 financial year which was reconciled and notified in October 2012.
4.40. The Applicant claims her husband’s salary was known to the Agency. The Applicant applied on many occasions for parenting payment and Newstart Allowance, and did have periods of time in receipt of each. Family Assistance payments (including FTB and CCB) and Social Security payments (including parenting payment and Newstart Allowance) are governed by different legislation. The definitions of income differ slightly, meaning that the types of income included in the respective assessment are different. Further, income is assessed in respect of different periods and at different times.
4.41. For FTB by instalment, where actual adjusted taxable income for the current income year is not known, the person’s rate of FTB is determined based on an estimate of adjusted taxable income. Reconciliation occurs at the end of the relevant income year, when actual adjusted taxable income is known. Reconciliation compares the amount that the person was paid based on the estimate with the amount that they should have been paid based on their actual adjusted taxable income. Following reconciliation a debt may be raised (if the person has been paid more than their actual entitlement) or a top up may be paid (if the person was paid less than their entitlement and meets the relevant date of effect rules).
4.42. Social Security payments are calculated based on the actual earnings of a person within a particular fortnight. The amount of income earned affects the amount a person is entitled to receive on a fortnightly basis and the failure to notify of income may lead to a debt of Social Security payments within a fortnight. Unlike FTB, these amounts are not reconciled on a yearly basis or averaged out over the year.
4.43. If the Applicant had a misapprehension of how to report her estimated combined income each financial year, the Secretary respectfully contends, this does not amount to administrative error.
4.44. Even if there is some element of administrative error by the Commonwealth (which is not conceded), to satisfy subsection 97(1) of the Administration Act, the debts must be attributable solely to administrative error of the Commonwealth.
…….
4.47. The Agency sent multiple notices to the Applicant during the debt periods as set out in the Facts and at paragraph 4.6 and 4.9 above, which should have alerted her to the fact that her FTB and CCB was being calculated based on an incorrect combined income – or at least, a significant underestimated amount.
4.48. The notices dated 6 May 2010 and 30 April 2013 specifically required the Applicant to update her family income estimate for the 2010/2011 and 2013/2014 financial years by choosing one of two options: option 1 being providing the Agency with an accurate family income estimate by a specified date, or option 2 being accepting the Agency’s family income estimate as accurate.
4.49. The Applicant gave evidence to the AAT1 that she does not recall seeing the notices or looking at them in any detail (T3/16). The notices were addressed to the Applicant’s last postal address as recorded by the Agency (ST5 / 33). Upon receiving the notices, the Applicant did not contact the Agency to query or correct her combined estimated income.
4.50. The Secretary contends that, had the Applicant done so, it is likely that the Agency would have updated her record and correctly calculated her entitlement.
4.51. The Secretary contends that the Applicant contributed to the debts, such that they cannot be said to be attributable solely to administrative error and accordingly subsection 97(1) of the Administration Act is not satisfied by the Applicant.
The Respondent further contended that there is insufficient evidence that the Applicant would suffer severe financial hardship if the 2008-2009; 2009-2010; 2012-2013 and

2013-2014 FTB and CCB debts were not waived on the same basis as contended in relation to consideration of section 95 of the FA Administration Act set out above.[117]
[117] Exhibit 5, Respondent’s Consolidated Statement of Facts, Issues and Contentions, page 25, paragraph 4.63.
The Respondent contended that a repayment arrangement negotiated with the Agency would enable the Applicant to repay the FTB and CCB debts over time.[118]
[118] Exhibit 5, Respondent’s Consolidated Statement of Facts, Issues and Contentions, page 25, paragraph 4.63.
The Respondent contended that even if the Tribunal were to find that the 2008-2009;

2009-2010; 2012-2013 and 2013-2014 FTB and CCB debts were attributable solely to administrative error and that the Applicant received the overpayments in good faith, those debts cannot be waived because of the operation of section 97(2)(b) of the FA Administration Act.[119]
[119] Exhibit 5, Respondent’s Consolidated Statement of Facts, Issues and Contentions, page 26, paragraph 4.64.
In response to the Respondent’s submissions the Applicant contended that:[120]
[120] Exhibit 7, Applicant’s Submissions in Reply to the Respondent’s Statement of Facts, Issues and Contentions, pages 1-3, paragraphs 6-14.
·
She had advised that her husband’s salary termination payout was received in

July 2008 and it had been inaccurately recorded in the diary note as it applies to the wrong financial year.
·That was the source of the error of calculation of FTB and CTB for that year and that was a mistake made solely by Centrelink.
·At that time her husband was a PAYG employee and the records of that and previous year’s income was available to Centrelink via the ATO.
·
The Respondent claims that she had contacted Centrelink and/or made representations to Centrelink regarding income estimates on 8 April 2009,

15 April 2009, 9 June 2009, 26 August 2009 and 30 September 2009 and this amounts to an extraordinary number of representations over a six-month period. This establishes that she was at all times seeking to cooperate with and to understand the provisions of her entitlements but denies that those estimates were provided in the form recoded by Centrelink.
·Considering during that period neither she nor her husband were in receipt of salary from an employer and were reliant on income payments reconciled by their accountants at the end of each financial year the constant hounding for unknown future income provisions was unreasonable and likely to create errors.
·It was a failure solely on Centrelink’s part in the administration of the FTB and CCB payments to her.
·There were substantial failures by Centrelink that rise to a level of institutional failure in so much as:
o     No actual application form for FTB or CCB was available or completed by either her or her husband.
o     There was no information sheet provided to enable proper assessment of the ability or otherwise to claim FAO assistance.
o     Centrelink’s failure to have systems in place for non-salaried earnings had not shown a duty of care sufficient to prevent or alleviate such errors.
o     At no time, notwithstanding that two of the three children were solely her husband’s, was any approach made to him to ascertain any difference in the estimates used by Centrelink in calculating such payments.
o     The Respondent claimed she was invited to update her income for the 2011-2012 financial year, notwithstanding they were in receipt of her most recent “actual family income” which should have been used as the calculation for FTB and CCB payments and again demonstrates a failure to adequately protect her.
The Applicant’s evidence and submissions at the Hearing were consistent with those outlined above.
In the Applicant’s Closing Submissions she contended:[121]
[121] Applicant’s Closing Submissions, pages 4-5, paragraphs 3.8-3.19.
Mistake of the Department in calculating payment
3.8. In the hearing of 24 May 2023, and in submissions made previously, the Applicant maintains that the errors in payment of FTB and CCB for the initial period being the 2008/2009 financial year is a mistake solely made by the Department, and not made or contributed to by the Applicant in any part.
3.9. At paragraph 8 through 13 of the Applicant’s ARCSFIC is detailed the circumstances surrounding this initial mistake. The Applicant stated there was not an application form provided of the initial claim for FTB or CCB and had such form been available, there would not have been such an error made by the Department.
3.10. We note the Department has confirmed at paragraph 4.19 of the CSFIC that “… the Secretary notes that, despite efforts being undertaken, a copy of the original claim form used by the applicant has not been able to be located”.
3.11. We have previously submitted there was no “Claim Form” and repeat that assertion here, that no “Claim Form” was ever completed by the applicant and the application process was done in such an ineffective and inadequate manner, that it is open to the Tribunal to find in the Applicant’s favour that the initial FTB & CCB payments made were entirely the error of the Department.
3.12. On this point we submit the available course of action is to provide the Applicant with the relief available under subsections 97(1) to (4) of the FA Administration Act, as the debt has been raised solely due to the administrative error on the part of the Commonwealth, that the funds were received in good faith and the recovery of this debt would cause severe financial hardship. The amount of the alleged debt relief in this matter is FTB of $13,495.10 (debt ID 91274258) for the period 1 July 2008 to 30 June 2009; and CCB of $1.762.24 (debt ID 91274259) for the period 1 July 2008 to
30 June 2009.
3.13. We further submit that the consequent debt of financial year 2009/2010 a further error was created, and note that two calls on 15 April 2009 calls were incomplete. In relation to the first call on 15 April 2009 (T27, 674), the notation says, “I accidently released cus to ISO whilst trying to complete first contact”. In the second contact on 15 April 2009 the notation says, “Was running FSCO when the phone cut out. Cus and Hus are self-employed. Bus is not doing well because of economic climate. Cus being assessed for PPP and also looking for work.”
3.14. With this information, it is the Applicants submission that no such estimate was provided to the Department, and if discussed, it was not as a certainty for the officers to enter into the system. Alternatively, there was a failure of communication between the Officer(s) and the Applicant. It is clear there are multiple contacts by the Applicant with the Department regarding Social Security benefits more broadly, and that the option for annual payments should have been offered as an alternative at this time, noting that there is a notation on the file that said: “Estimate is low compared with ISP plus earnings”.
3.15. The applicant gave evidence to the Tribunal on 24 May 2023, and it is further submitted that any estimates used in the calculation of FTB and/or CCB were as generated by the Department and provided to her. The Applicant admits that these were not disputed or altered when sent to her, however she expected the Department to correctly calculate FTB and/or CCB on records available to them via the Tax Office from time to time.
3.16. It is apparent that this issue persisted for many years, from the 2009/2010 financial year to the 2013/2014 financial year and has created severe financial hardship for the Applicant and her family for more than a decade now.
Mistake of the Department in failing to protect Applicant
3.17. We submit that the Department erred in continuing to enable ineffective methods of calculating benefits being paid, and that it was obvious to them, and was noted on their file, that the current system of continual estimates in a financial situation was failing the Applicant and the Department.
3.18. We submit that, in a situation where it was virtually impossible to provide reliable estimates, the alternative annual payment should have been implemented as a far more reliable system for the Applicant, noting the variability of self-employed earnings (evidenced from the Tax Records obtained by the Department).
3.19. We submit that it was irresponsible to continually burden the Applicant with debts in the circumstances where projections of income could not reasonably be obtained as they were really not known until the accountant’s final adjustments and journals at the completion of the tax returns for the financial year in question.
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.
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.[122] 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.
[122] 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.
Given the length of the debt period and quantum of the FTB and CCB debts the evidence before the Tribunal is voluminous. Having reviewed that material in totality, the Tribunal is satisfied that the Applicant did not intentionally seek to have more FTB and CCB paid to her during the debt period than what she was entitled to receive. It is not disputed that she received the relevant FTB and CCB payments in good faith. This does not however change the fact that she did not correctly provide and/or update her family income for FTB and CCB purposes during the debt period.
The Applicant’s failure to do so, in circumstances where she was provided with a number of notices setting out details that should have alerted her to the fact that the payments were being made based on incorrect information and required her to notify the Respondent of any change in circumstance or incorrect details resulted in her being overpaid.
Whether the Respondent made administrative errors that contributed to the FTB and CCB debts arising in the debt period, which has not been clearly established, is irrelevant. The test is not whether those debts 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.
The Tribunal notes the Applicant’s evidence in relation to having not paid full attention to the letters she received from the Respondent during the debt period and her contentions that she accepted income estimates suggested by the Respondent on the basis she assumed they would only pay her what she was entitled to. Such arguments do not displace the onus put on benefit recipients to ensure the Respondent has the correct details upon which to base rates of payments.
This Tribunal in Secretary, Department of Social Services and Gilmartin [2022] AATA 723 (Gilmartin) at paragraph [62] 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 provided:
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.
The Applicant contended that the Respondent breached a duty to protect her from being overpaid, however it is not up to the Respondent to make payment elections for the Applicant between annual and fortnightly payments.
In Saab and Secretary, Department of Education, Skills and Employment [2021] AATA 2766 (Saab), Senior Member Puplick provided at paragraphs [66] and [68] 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 notice provisions of the FA Administration Act[123] make it clear that upon being issued with such a notice, a positive obligation is placed on the FTB and CBB 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) she received from the Respondent to correct those details which were incorrect, has failed to meet the obligation to ensure that the information being used to calculate her entitlements to FTB were correct.
[123] 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 Applicant received the amounts of FTB and CCB in the debt period in good faith, however the FTB and CCB debts in relation to the debt period are not attributable solely to administrative error.
As such, the Tribunal finds that the Applicant’s FTB and CCB debts in relation to the debt period cannot be waived pursuant to section 97 of the FA Administration Act.
Should the debts 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.[124] The Tribunal notes that in Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114 in referring to an earlier decision in Secretary, Department of Family and Community Services and Jonauskas [2001] AATA 72 at [74] said:
‘…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.’
[124] For example see: Re Callaghan and Secretary, Department of Social Security (1996-97) 45 ALD 435 and Re Anderson and Secretary, Department of Families and Community Services (2002) 69 ALD 494.
Based on the evidence before it and noting that the Respondent did not make submissions on this issue, the Tribunal is satisfied that the Applicant’s FTB and CCB debts in relation to the debt period did not result from her knowingly making a false statement or false representation or from knowingly failing or omitting to comply with her notification obligations under the FA Administration Act.
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.[125]
[125] 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 at paragraph [45]:
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.[126]
[126] 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.
At the Hearing, the following submissions were made by or on behalf of the Applicant:[127]
[127] The Tribunal notes that at the Hearing the Applicant was in part represented by her husband, Mr Greene.
·There is a fairness issue given that the CCB was paid to Mother Duck Child Care, not to the Applicant. There was no ability to remove the children from child care given the amount of time that had passed.
·The Child Support Agency uses information from the ATO in relation to income and so why was the Applicant put through having to report income to Centrelink.
·Centrelink calculated the income and the Applicant accepted what they said.
·At all times the Applicant had dealt in good faith.
·At the time that the initial debt arose they had been through 10 years of Family Court proceedings.
·They sold their house in 2013 and lived off the proceeds rather than seek assistance.
·At the time the debts were raised they were in hardship as they were selling jewellery and personal affects in order to buy food, they had fallen into debt.
·Mr Greene had been unemployed since January.
·The Applicant has casual income and that is all that they have.
·The Applicant can not pay the debt off herself.
·During 2020, 2021 and 2022 Mr Greene was working and they paid off debts and now have little savings.
·Mr Greene has had two transient ischemic attacks (TIAs) and other medical conditions that means he is unable to work.
·The Applicant has had a number of health issues in the recent years.
·The conduct of the Respondent should be taken into consideration, the further and better particulars had not been responded to and they had been seeking explanation of the debt for 8 years.
·The Applicant relies on the decision in Angelakos.
·All of the circumstances when looked at together rise to the level of exceptional circumstances.
·If the mistake in the first year had have been identified, then the subsequent years would not have occurred. The Applicant does not recall making any further income estimates and she had a lack of understanding about what they were about. If the Respondent had of referred to the relevant tax returns this situation would not have arisen.
In response to questions asked by the Respondent at the Hearing, the Applicant told the Tribunal that:
·She was presently working as a mental health peer worker and she held a diploma of mental health.
·She was unemployed between May 2019 and December 2022, she was a homemaker.
·She started work again around when Mr Greene stopped work.
·She had surgery in August 2022 for ovarian cancer.
·She anticipated working for the time being.
·
They were not presently receiving any Centrelink payments as they had used

Mr Greene’s payout from when he ceased work but they had run out two weeks earlier.
·Mr Greene has superannuation however it is not accessible.
·Their daughter was in year 10 at school and otherwise they had no other caring responsibilities.
·They have not received any Centrelink payments in relation to their daughter since 2013.
After the Hearing the Applicant provided submissions dated 13 June 2023[128] and
[128] Applicant’s Statement of Financial Circumstances and Health Particulars – Attachment A Statement of Financial Circumstances and supporting documents.
[129] Applicant’s Closing Submissions in Reply to the Respondent’s Closing Submissions, page 3, paragraphs 2.1-2.8 and Annexure A.
28 August 2023,[129] providing further information in relation to her and her husband’s financial and health situation.
In closing submissions dated 3 August 2023, the Respondent contended that:[130]
[130] Respondent’s Closing Submissions, pages 3-5, paragraphs 3.4-3.11.
3.4 With respect to special circumstances, the Secretary refers to the authorities cited in the CSFIC relating to principles relevant to considering special circumstances. The Secretary also notes the acknowledgement of the Applicant's circumstances as outlined to the AAT1 and as summarised in the CSFIC, as follows:
(a)The Applicant reported being self-employed to the AAT1 and her income varies across the year;
(b)The Applicant reported to the AAT1 that she was seeking paid employment. She indicated in her application that she had no income of her own;
(c)The Applicant’s husband currently has a good job earning approximately $200,000 per annum;
(d)The Applicant and husband make regular payments for school fees and car loans;
(e)They have one dependent child in their care;
(f)The Applicant’s husband has a number of health issues and the Applicant feels he may not be able to work for much longer;
(g)They have minimal savings for retirement;
(h)During the debt periods, the Applicant claims they were in financial hardship and sold their property and lived off the proceeds. They were both unemployed at times;
(i)The Applicant claims they ceased receiving any family assistance benefits from 2013 and this exacerbates their debt pain and hardship;
(j)The Applicant seeks that the family assistance entitlements they might have been eligible for since 2013 be calculated and credited to them.
3.5 It may be noted that certain aspects of this evidence has changed since the AAT1 proceeding. In particular, the recent evidence is that Mr Greene no longer has income from his consultancy work, and the Applicant is no longer self-employed but is now an employee. It is also noted that the Applicant has had a cervical cancer diagnosis in 2022 and received treatment for this, and that Mr Greene has a number of health issues and requires dental work that is likely to be quite expensive.
3.6 As was noted in the CSFIC, there is no provision which would allow for the calculation of potential entitlements to be credited against the debts under review, particularly where no claim is made, nor contacts to seek payments. As noted in the CSFIC, the Applicant’s payments had ceased due to her PIP status—due to the non-lodgement debts, she was prohibited from FTB instalment payments (PIP). There is no reason the Applicant could not have contacted the Agency to discuss, and make lump sum claims for FTB in the following years.
3.7 The Secretary does not accept that the debts have arisen from any error on behalf of the Agency. The Applicant has contended that the Agency should have been more aware of the Applicant's income, or should have sought further clarification about these matters, which may have stopped the various debts arising or being of the size that they are. Respectfully, the Secretary submits that substantial correspondence was provided to the Applicant during the debt periods that alerted her to the basis on which payments were being calculated, and invited her to review and update the details if they were not accurate. Despite this, where the Applicant was responsive to this correspondence, the Agency continued to record details as given by the Applicant that ordinarily substantially underestimated the amount of income for the Applicant and Mr Greene. The Agency cannot be criticised for dealing with the information given to it. There is no basis to consider any special circumstances arising on this basis.
3.8 It is acknowledged that both the Applicant and Mr Greene have had health issues, and this no doubt causes distress and hardship. However, it is not unusual or uncommon for recipients of family assistance benefits to face such health difficulties and hardship— the Applicant’s case in this respect is not distinguishable from the ordinary case.
3.9 In terms of the Applicant’s financial circumstances, the Secretary notes that these circumstances are now more straitened since the time of the AAT1 decision, in particular due to Mr Greene not having worked more recently. However, it is the case that the Applicant is in employment, and although their financial circumstances could not be described as strong, the evidence suggests that the Applicant and Mr Greene are able to manage their financial affairs, and that their finances are not so dire as to give rise to special circumstances.
3.10The Secretary contends that the Applicant’s circumstances are not distinguishable from the majority of other social security or family assistance benefit recipients, and that there is no evidence of any other special circumstances arising in this matter.
3.11 Respectfully, the Secretary contends that the above circumstances do not, individually or collectively, enliven the discretion to waive the debts under section 101 of the Administration Act, for the reasons given above.
In the Applicant’s closing submissions in reply dated 28 August 2023, she provided the following submissions in relation to section 101 of the FA Administration Act:[131]
[131] Applicant’s Closing Submissions in Reply to the Respondent’s Closing Submissions, pages 6-9, paragraphs 3.28-3.41.
Other Matters for consideration under S101 of the FA Administration Act
3.28. The Applicant has brought to the Tribunal’s attention serious deficits in the conduct of the Respondent throughout this case, including its failure to provide necessary and legitimate information about the Applicant’s claims and payments history. It further failed to provide any details sought in the Request for Further and Better Particulars filed in this matter.
3.29. Whist the Applicant acknowledges the Respondent is skillfully represented by Counsel from one of Australia’s largest law firms, we are continually stonewalled from receiving information we are legitimately and legally entitled to receive.
3.30. The Applicant has not sought this information as any nuisance or for irrelevant reasons, but to assist determine the truth or otherwise of their claim. Further we sought to identify what entitlements we should have been paid, and whether offsets were legitimately available, noting the Department has regularly withheld payments in lieu of alleged debts in the past, which the Applicant did not oppose.
3.31. In relation to financial hardship caused by the conduct of the Department, the Applicant gave evidence as to the extraordinary financial difficulty faced especially during the period when the Department was withholding the maximum amount of funds from Newstart and FTB payments. These withholdings are detailed at (S2, 3 - 18). Details of the types of Centrelink Payments and the amount of Centrelink payments the Applicant was receiving or entitled to are not detailed in the EDC filed by the Respondent and therefore cannot be reconciled.
3.32. The Applicant has pursued this information via many methods, including throughout these proceedings, but previously through contact with the Department directly, through Freedom of information Requests, and via the Federal Member for Dickson’s office direct enquiry with the Department.
3.33. The Applicant submits the Department’s refusal to provide this information is an abuse of power, and unlawful. The Department is required by the Legal Services Direction of 2017 to act as a ‘model litigant’.
3.34. We submit that the following matters breach this requirement by the Department:
3.34.1. The Department has failed to act honestly and fairly in handling claims and litigation, in so far as it refused to provide the information requested by the Applicant through these proceedings, even if it believed this information could not be used in the proceedings, it was legitimate information the Applicant was entitled to receive.
3.34.2. The Department has not dealt with claims promptly and has caused unnecessary delay in these proceedings, including the filing of documents late, in the last case almost two weeks after the orders for filing of documents had expired, even though they had already been extended.
3.34.3. The Department had refused to suspend collection attempts on request, requiring the Applicant to bring on a hearing before the AAT to secure a Stay Order which was granted on 18 October 2021. Notwithstanding this Stay Order being in place Centrelink have ignored the AAT Order and continue to seek payment arrangements from the Applicant as recently as 27 March 2023, when they sent an SMS message “You will need to start paying the money you owe soon. Please set up a payment arrangement now by using the Express Plus Centrelink mobile app or your Centrelink online account through myGov. Thank you if you have already paid. Do not reply by SMS”. This SMS was followed up by telephone calls directly to the Applicant. When the Officer was informed verbally there was a Stay Order in place their response was “That does not apply to us”.
3.34.4. The Department has failed to limit or narrow the scope of these proceedings by the filing of copious documents, many unnecessary for their case, but creating an extraordinary burden on the Applicant.
3.34.5. The Department has failed to avoid litigation, and made no offer of any kind to settle or mediate this matter throughout the now more than 3 years of litigation in the AAT.
3.34.6. The Department has taken advantage of the Applicant, who obviously lacks the resources to effectively meet the Department’s claim.
3.35.We submit that the conduct of the Respondent, in causing a debt notice by a debt collection agent for a claim of some $67,000 being served on the Applicant, knowing that such debt was plainly wrong, was an abuse of power and caused the Applicant harm. We further note the Applicant sought for the Tribunal to see a copy of this notice, by way of paragraph 7 of the Applicant’s Request for Further and Better Particulars, as it was so egregious and offensive, that the mental and potentially physical harm it has caused is unconscionable, but such request was refused.
3.36. We note the Tribunal’s advice that many of these matters are not able to be determined in this case, and that notwithstanding there are many financial years where the Applicant did not receive FTB payments in what would otherwise be available and within entitlements of the Applicant, this tribunal cannot make allowances for these lost payments in determining this matter.
3.37. We further submit, through no fault of the Applicant, we have been denied significant payments that the Applicant would ordinarily have been entitled to if the Department had acted in good faith and processed the Applicant’s FTB application as a lump sum payment, in accordance with that provision for the several years identified previously. And further, if the Tribunal did not consider that matter in determining “special circumstances”, would effectively further punish the Applicant and create an unfair and unjust determination, especially with the knowledge the Applicant has no legal recourse to recover those missed entitlements into the future.
3.38. We submit that the delayed notification to the Applicant regarding the alleged debts, coupled with the approach of recovering CCB payments, payments which were paid directly to the Service Provider and not the Applicant, would further exacerbate the financial harm suffered by the Applicant. The Applicant had earnestly sought childcare services for their youngest child during that period. Had the Applicant been aware that these payments would not be made, they could have explored different childcare options or made no arrangements at all. Unfortunately, rectifying this situation after the fact is not possible, and the request for reimbursement of these funds places an undue and exceptional burden on the Applicant.
3.39. We submit there is nothing in the authorities from preventing the Tribunal considering this conduct as so unusual or uncommon that they add to the distinguishable nature of “special circumstances” when considering the waiving of this debt under section 101 of the FA Administration Act.
3.40. We submit that all of these additional matters, including the extraordinary time that has passed since the alleged debts were created, rise above the ordinary or usual case, noting The Federal Court in Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25 emphasised that it is not the intention of Parliament that the exercise of this discretion be confined to the ‘exceptional’ case, but rather that there be something that distinguishes the case from the ordinary or usual case. Further, for special circumstances to exist there must be some factors, apart from financial hardship alone, which distinguish the case and set it apart from other similar cases.
3.41. In Secretary, Department of Social Services v Hales (1998) 82 FCR 154 at 155, French J said at 162, “But as a matter of grammar and ordinary logic, the exclusion of financial hardship alone as a special circumstance does not mandate its inclusion in the range of matters constituting such circumstances for the purpose of enlivening the Secretary’s discretion.”

The Tribunal notes that the Applicant drew its attention to the Federal Court decision in Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25. The Tribunal agrees that as a starting point in considering whether special circumstances exist is flexibility. Besanko J at [17-18] referred to circumstances having to be “unusual or uncommon” rather than “exceptional” to distinguish the case from the ordinary or usual:
I also note that the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances. The danger is that the test will be overstated if the word “exceptional” is emphasised. It was not the intention of parliament to confine the exercise of the discretion to an exceptional case. There is less risk of overstatement if the words “unusual” or “uncommon” are emphasised. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case. It may not be easy to postulate the ordinary or usual case other than in quite general terms and, in doing so, close attention must be given to the particular statutory context.
The concept of special circumstances must be viewed in the context of the statute providing that if an amount paid to a person who is not entitled to it, that amount must be recovered.[132] Deputy President Forgie in Gerhardt and Department of Employment, Education and Training [1996] AATA 173 at [47] explained that:
There will be special circumstances if the circumstances are such that it is unreasonable, unjust or inappropriate to recover the amount paid being in mind that the provision are intended to ensure the recovery of amounts incorrectly paid ……
[132] Rofail and Secretary, Department of Social Services [2022] AATA 2317 at [104], citing Gerhardt and Department of Employment, Education and Training [1996] AATA 173.
In Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114 at [80], Deputy President Forgie made reference to the need to consider an applicant’s individual circumstances against the administration of the social security system where other persons who have received payments will have been required to repay them:
The “special circumstances” are not merely directed to the person’s own circumstances. Rather, they are directed to those that are “special circumstances ... that make it desirable to waive”. That necessarily requires a consideration of the person’s individual circumstances but also a consideration of the general administration of the social security system. Waiver of the debt would mean that Mr Davy would have had the benefit of part of his DSP in circumstances in which he was not entitled to it. Certainly, he did not know that his father was giving him his own money but the fact that he was deceived by his father does not mean that it is desirable to waive the debt. He has had the benefit of the money and there is no injustice in requiring him to repay the money of which he has had the benefit but not the entitlement... The system of administration of the SS Act does not visit any injustice for many if not all social security recipients but it did not lead to any injustice or unfairness on Mr Davy that is not visited, or potentially visited, upon all other recipients of social security payments under the Act. Therefore, I am not satisfied that there are special circumstances that make it desirable to waive the debt under s 1237AAD of the Act.
Emphasis added.
The Tribunal acknowledges the personal and financial difficulties that have been faced by the Applicant both during and after the debt period. Both the Applicant and Mr Greene were forth coming at the Hearing and it was clear that the outstanding debt matter and the difficulty in obtaining full particulars of the debt calculations have caused them both tremendous stress. The evidence before the Tribunal is that the Applicant and Mr Greene have at various times refrained from seeking financial assistance in circumstances where they may have had entitlement to assistance, for example by selling their home and using the proceeds for lieu of income for living expenses. This has however, while admirable, been a matter of choice and is not something that can be used to offset the debts in question.
The Tribunal accepts the Applicant’s evidence in relation to both her and Mr Greene’s poor health and that this causes destress and hardship. While the Tribunal sympathises with the Applicant and in no way intends to trivialise her nor Mr Greene’s past and present personal and health circumstances, there is no evidence before it that indicates their circumstances, whilst special to them, are unusual or out of the ordinary when compared to other family assistance or social security recipients who have incurred debts or that there is any injustice in requiring the Applicant to repay the debts.
As outlined previously, the Tribunal accepts the Applicant’s financial position is straitened. Based on the evidence before the Tribunal the Applicant was working, was not in receipt of social security benefits and has some large expenses in relation to health care and education. While the Tribunal has no doubt that the Applicant is not living a lavish lifestyle, she did not present any evidence to suggest that she was not able to meet her financial commitments.
The Applicant contended that she had not received family assistance entitlements she was entitled to since the debt period. She sought to have any such entitlements calculated and offset against any debts found to exist. The Applicant contended that she had not received those payments due to actions of the Respondent, the Respondent disagreed, stating it was up to her to have sought such assistance at the relevant times. The Applicant contended that if the Tribunal did not consider that matter in determining special circumstances it would effectively punish her and create an unfair and unjust determination, especially where she has no legal recourse to recover those missed entitlements into the future.
Whilst in part it may seem that loss of entitlements to FTB are a harsh follow on from the Applicant’s FTB and CCB debts, it must however be noted that it is up to potential benefit recipients to make claims for the family assistance or social security benefits they may be entitled to. While it appears that the Applicant did not realise that she could seek an alternative mechanism for receiving FTB, neither that or the fact that she had outstanding FTB and CCB debts place an onus on the Respondent in the absence from action being taken by the Applicant to change her method of claiming FTB. The failure to claim FTB and other family assistance or social security benefits that a person is entitled to is not unusual, uncommon or exceptional from the usual run of cases.
The Applicant’s dissatisfaction with the Respondent and how they have managed the payment of FTB and CCB benefits to her, the FTB and CCB debts and the review process are clearly outlined in the evidence before the Tribunal. This of itself does not constitute special circumstances. Dissatisfaction with the Respondent and how it administers the family assistance and social security regimes is not an uncommon or unusual situation among family assistance or social security recipients. Having considered the matters raised by the Applicant the Tribunal does not consider they constitute circumstances that distinguish the Applicant’s case from the ordinary or usual case or make it unreasonable, unjust or inappropriate to recover the FTB and CCB debts.
Based on the evidence before it, the Tribunal is not satisfied that the Applicant’s circumstances, individually or collectively, are sufficiently ‘unusual, uncommon or exceptional’ or otherwise ‘special’ to warrant exercise of the discretion in section 101 of the FA Administration Act to waive all or part of the FTB or CCB debts. Further the Tribunal is satisfied that in considering the Applicant’s circumstances as a whole there is no injustice or unfairness in requiring the Applicant to repay the money of which she had the benefit of, but not the entitlement to, during the debt period.
Consequently, the Tribunal finds that the Applicant’s FTB and CCB debts for the debt period cannot be waived pursuant to section 101 of the FA Administration Act.
CONCLUSION
The Tribunal appreciates the frankness of the Applicant and Mr Greene at the Hearing and the effort they put into the written submissions they provided. The Tribunal empathises with the Applicant’s situation, however it is bound to apply the law.
The Applicant identified a number of the issues she sought to raise in relation to her dissatisfaction with the Respondent and its officers conduct which fall outside of the Tribunal’s jurisdiction. It is open to the Applicant to consider making a complaint to the Commonwealth Ombudsman or should she consider that the circumstances surrounding her non-receipt of FTB after the debt period fall within the parameters set out in the Scheme for Compensation for Detriment cause by Defective Administration (CCDA Scheme), she may consider making a claim for compensation.
There is nothing preventing the Applicant from seeking a payment plan from the Respondent or should her circumstances change, seeking to have any outstanding debts written off or waived.
For the reasons set out above, the Tribunal finds that the:
(a)Applicant was paid more than her correct amount of family tax benefit and child care benefit for the 2008-2009; 2009-2010; 2010-2011; 2012-2013 and 2013-2014 financial years;
(b)debt calculations in relation to the Applicant’s family tax benefit and child care benefits for those periods are correct;
(c)Applicant’s family tax benefit and child care benefit debts are debts owed to the Commonwealth;
(d)requirements of sections 95, 97 and 101 of the FA Administration Act in relation to the Applicant’s family tax benefit and child care benefit debts are not met; and
(e)Applicant’s family tax benefit and child care benefit debts are recoverable in full.
159.Accordingly, the decisions under review are affirmed.

I certify that the preceding 159 (one hundred and fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

.....................[SGD]........................
Associate

Dated: 19 April 2024

Date of hearing:
Date of directions hearings:

Date of last submissions:

24 May 2023
11 September 2023
24 October 2023

2 February 2024

Applicant:
In person
Assisted by Mr Geoffrey Greene

Solicitor for the Respondent: Mr David McLaren
Minter Ellison

ANNEXURE A

Exhibit 1 T Documents, T26, pages 406, 409 and 414, Centrelink letters to the Applicant for period

28 November 2008 to 2 February 2021.

Exhibit 1, T Documents, T45, page 1512, Centrelink letters to Applicant for period 14 November 2011 to

27 June 2013.

Exhibit 1, T Documents, T45, page 1518, Centrelink letters to Applicant for period 14 November 2011 to

27 June 2013.

Exhibit 1, T Documents, T45, pages 1525 and 1532, Centrelink letters to Applicant for period

14 November 2011 to 27 June 2013.

Exhibit 1, T Documents, T45, page 1527, Centrelink letters to Applicant for period 14 November 2011 to

27 June 2013.