Hales and Department of Social Services (Social services second review)

This matter concerned an appeal by Mr and Mrs Hales against decisions of the Department of Social Services (the respondent) regarding social security debts. The applicants did not dispute the existence of a debt but contested its quantum and sought waiver of all or part of the amount owed. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the debts could be written off or waived under specific provisions of the *Social Security Act 1991* (the Act).

The Tribunal considered three primary legal issues. First, whether the debt could be written off under section 1236 of the Act. Second, whether the debt could be waived, in whole or in part, under section 1237A of the Act, on the basis that it resulted solely from an administrative error by the Commonwealth. Third, whether the debt could be waived, in whole or in part, under section 1237AAD of the Act, due to special circumstances, provided the debt was not knowingly caused by the applicants' false statements or omissions, and waiver was more appropriate than writing off the debt.

The Tribunal found that the criteria for writing off the debt under section 1236 were not met, as the applicants did not satisfy any of the conditions outlined in that section. Furthermore, the Tribunal determined that the debt did not arise solely from an administrative error by Centrelink, but rather from the applicants' failure to advise Centrelink of an asset, thus precluding waiver under section 1237A. Regarding section 1237AAD, the Tribunal concluded that the applicants had not demonstrated the existence of special circumstances that would warrant waiving the debt, and that the debt was not solely attributable to administrative error. Consequently, the Tribunal varied the decision by accepting a revised valuation of Mrs Hales’ property, which resulted in a recalculation of the outstanding debts. The Tribunal affirmed that the overpayments were legally recoverable debts that could not be written off or waived.