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

This matter concerned an appeal by Ms Janke against a decision of the Secretary of the Department of Social Services regarding Family Tax Benefit (FTB) debts. The dispute centred on whether certain amounts paid to Ms Janke constituted debts due to the Commonwealth and, if so, whether those debts were recoverable. The decision was made by A C Cotter SM in the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether Ms Janke had been paid more than her correct FTB entitlements, whether any excess amounts constituted debts due to the Commonwealth, and whether those debts were recoverable under the relevant provisions of the *A New Tax System (Family Assistance) Act 1999* (Cth) and the *A New Tax System (Family Assistance) (Administration) Act 1999* (Cth). Specifically, the Tribunal considered whether the conditions for writing off the debt or waiving its recovery due to special circumstances were met.

The Tribunal reasoned that Ms Janke had been overpaid FTB for the 2003/2004 and 2004/2005 financial years because she and her former partner failed to lodge their tax returns within the prescribed timeframe, triggering section 28 of the Administration Act. This failure meant she was deemed not to have been entitled to the FTB paid, and under section 71, these excess amounts became debts due to the Commonwealth. The Tribunal found that the provisions for writing off debt under section 95 of the Administration Act were not applicable, as none of the specified circumstances, such as the debt being irrecoverable at law or the debtor lacking capacity to repay, were present. The Tribunal also distinguished Ms Janke's situation from that in *Price and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs*, finding that her circumstances did not constitute "special circumstances" warranting a waiver of recovery, particularly as the debts had been repaid and she was in full-time employment.

Accordingly, the Tribunal affirmed the decision under review, concluding that the debts were due and recoverable.