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

[2015] AATA 721

JZWB and Secretary, Department of Social Services (Social services second review) [2015] AATA 721 (17 September 2015)

Division	GENERAL DIVISION
File Number	2014/3427
Re	JZWB
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member A C Cotter
Date	17 September 2015
Place	Brisbane

The Tribunal sets aside the decision under review and substitutes a decision that:

(a)$5,400.00 of the debt in respect of the Parenting Payment debt is waived, such that the amount of Parenting Payment debt due to the Commonwealth is $1,566.86; and

(b)The amount of Family Tax Benefit debt due to the Commonwealth is $3,815.75.

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

Senior Member A C Cotter

CATCHWORDS

SOCIAL SECURITY – overpayment of Parenting Payment and Family Tax Benefit – failure to disclose child removed from care – application for waiver of right to recover debts - whether debts solely attributable to administrative error of the Commonwealth – whether special circumstances exist – no error found – special circumstances made out – decision under review set aside and a decision that $5,400 of the parenting payment debt is waived is substituted – Family Tax Benefit debt not waived

LEGISLATION

Social Security Act 1991 (Cth) ss 1237A, 1237AAD

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) ss 97, 101

CASES

Sekhon v Secretary, Department of Family and Community Services (2003) FCR 126
Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435
Re Davy and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 693
Beadle and Director-General of Social Security (1984) 6 ALD 1
Wilson v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 154
Oberhardt v Secretary, Department of Education, Employment and Workplace Relations and Anor (2008) 174 FCR 157
Secretary, Department of Social Services v Hales (1998) 82 FCR 154

REASONS FOR DECISION

Senior Member A C Cotter

17 September 2015

INTRODUCTION[1]

[1] The facts set out in the Introduction are not controversial and are based on the Respondent’s Outline of Submissions (Exhibit 4), paragraphs [3] to [14], as agreed in the Applicant’s Statement of Facts and Contentions (Exhibit 5), paragraph [4].

1. In December 2012, the Applicant gave birth to a son. Having been born premature, he was in hospital for about a month.

2. The Department recorded the Applicant as having 100% care of the child from the date of his birth and paid her Parenting Payment (“PP”) and Family Tax Benefit (“FTB”) on that basis.

3. In September 2013, the Department received a claim for FTB in respect of the child from a third party, who produced an Authority to Care for Child issued by Child Safety Services Queensland pursuant to the Child Protection Act 1999 (Qld). That document confirmed that the child was placed in the third party’s care from 26 March 2013.[2]

   [2] Exhibit 1, T Documents, T 18, page 43.

4. In November 2013, the Department determined that the Applicant had 0% care of the child from 25 March 2013 (that date was later corrected, to 26 March). On the same date, it determined that the Applicant had been overpaid PP and FTB to 30 October 2013 and that those amounts should be recovered. After an initial miscalculation, the amounts of the debts were recalculated as $3,815.75 in respect of the FTB and $ 6,966.86 in respect of PP.

5. Dissatisfied with the decision of an Authorised Review Officer which effectively affirmed the original decision, the Applicant applied for a review by the Social Security Appeals Tribunal (“SSAT”), which decided that the debts were recoverable.[3] The Applicant now seeks a review of that decision.

   [3] Although the SSAT did send the matter back to the Chief Executive of Centrelink to recalculate the amounts of the respective debts.

   ISSUE FOR THE TRIBUNAL

6. The Applicant having accepted that she was overpaid PP and FTB during the period 26 March 2013 to 30 October 2013 and that those overpayments are debts due to the Commonwealth, the sole issue is whether recovery of part or all of the debts should be waived.[4]

   [4] See Applicant’s Statement of Facts and Contentions (Exhibit 5), paragraphs [2] and [3].

   CONSIDERATION

7. The Applicant contends that the debts should be waived, either because they are attributable solely to the Commonwealth’s administrative error, or because special circumstances justify their waiver in this instance. I deal with both grounds below.

   Debts attributable solely to administrative error

   The legislative provisions

8. The provision on which the Applicant relies in relation to the waiver of the PP debt is s 1237A of the Social Security Act 1991 (Cth) (“SSA”). It provides, so far as it is relevant:

   Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.

9. A not dissimilar provision (s 97) in respect of the FTB debt is found in A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (“FAA”):

   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.

   The Applicant’s contention

10. In seeking to invoke these sections, the Applicant relied on a visit that she and her partner made to the Atherton office of Centrelink on 11 March 2013, the thrust of which was as follows.

11. The partner had an appointment with Centrelink about his Youth Allowance claim. Once that discussion concluded, he and the Applicant mentioned to the Centrelink officer that their son was in Cairns Hospital and that they were told he would go into foster care. They said that there was a temporary order in place but that another court date was coming up in April. The Applicant says that the Centrelink officer told her that she was still entitled to PP as there was no guardianship order and she and her partner were still the legal guardians of their son. The Centrelink officer then printed out a page headed “Emulator”, showing the payments which the Applicant would receive for the following couple of months. She gave the Applicant the piece of paper to help her understand what payments she could expect to receive.[5]

    [5] Applicant’s statutory declaration, Exhibit 2, paragraphs [44] to [49].

12. The Applicant says that in light of that discussion, she read subsequent letters she received from Centrelink as confirming that the child continued to be her “dependant” or in her “care” as a result of her ongoing guardianship.[6] As a one year guardianship order was not made until May 2014, the Applicant says she was justified in not notifying Centrelink of changes in circumstances regarding the child’s day to day care.

    [6] See paragraph [15] of the Applicant’s Statement of Facts and Contentions, Exhibit 5.

    Was there an error by the Commonwealth?

13. The case presented before me was considerably different to that which was determined by the SSAT. Before the SSAT, there was a threshold factual dispute as to whether the Applicant and her partner met with Centrelink in March 2013 at all; there was no Centrelink record of the meeting produced, let alone one of the alleged conversation.

14. That changed. First, the Applicant produced the Emulator print out dated 11 March 2013that she said was given to her by the Centrelink officer.[7] By the time of the hearing before me, two notes had been discovered by Centrelink – a note of a meeting on 11 March,[8] recorded on the Applicant’s partner’s file, and a note of a phone call on the Applicant’s file a few days earlier, on 8 March 2013.[9]

    [7] Annexure 1 to the Applicant’s statutory declaration, Exhibit 2.

    [8] Exhibit 6, page 9.

    [9] Exhibit 8.

15. Notwithstanding those developments, there remained a dispute as to what was discussed and whether the records were complete. Further, the Centrelink officer who was identified as having had the conversation on 11 March is no longer employed by the Commonwealth and was not called to give evidence. 

16. At the hearing, two competing “case theories” or hypotheses were advanced, one based on the testimony of the Applicant and her partner, and the other, based on the series of documents on the Department’s files, read together.

17. The Applicant’s case has already been outlined: that she and her partner had the meeting at Centrelink’s Atherton office; they told the officer that there was a temporary court order in respect of their child who was still in hospital; it was likely he would go into foster care; and that they were incorrectly told that their payments would continue until they lost guardianship of him.

18. The competing theory can be summarised in this way. Despite having applied in January for the various payments available to them, the Applicant initially received only the PP and did not receive FTB. She telephoned Centrelink on 8 March 2013 to inquire about the FTB payment. A request was generated to follow that up. When the Applicant attended the scheduled appointment with her partner at the Atherton office of Centrelink on 11 March, she took the opportunity to inquire as to the FTB payment’s progress. That is when the Emulator print out was produced, showing that the payment was being processed. That revealed that a back payment for FTB had been paid, or was due to be paid, into the Applicant’s nominated account. Letters confirming the payments were generated, coincidentally, on 11 March.[10] On that hypothesis, that was the extent of the discussion concerning the child and the applicable benefits; it revolved around when payments would be received over the next few months. This, the Secretary contends, is supported by the note taken by the Centrelink officer which reads simply “Children in care- yes – newborn – FTB current –partner’’, and notably does not make mention of any change in care arrangements.

    [10] See Exhibit 1, T Documents, T 15, pages 92-94 and 95-98.

19. Which hypothesis is to be preferred? While it is true to say that the Department’s theory is not supported by the direct testimony of the particular officers involved, it does have a logical and internal consistency to it, based on the material to hand. The Applicant made a call to Centrelink on Friday, 8 March about the FTB, which led to a follow up being initiated. That appears to have prompted the generation of two letters the following Monday, 11 March, concerning PP and FTB. Obviously, the Applicant would not have received those letters at the time of her partner’s scheduled visit to the Centrelink office that same day. However, the officer could inform her about the expected payments and their timing. The officer struck through the line “FAO Immediate” which described the type of payment as “Otp + arr” (which I understand to mean one time pay and arrears). She hand wrote a figure of $85.14, which, when added to the amount of the anticipated payment, $2,237.74, matched the amount of the payment mentioned in the letter concerning FTB.[11]

    [11] See Exhibit 1, T Documents, T 15, page 95.

20. In contrast, there were a number of inconsistencies and contradictions in the Applicant’s case which created doubt in my mind as to its accuracy. To give some examples. During cross-examination, the Applicant was asked about the call to Centrelink on 8 March and whether she recalled chasing the FTB payment;[12] she said she could not recall that, and in fact, denied having called Centrelink in March. That, of itself, is difficult to accept, as the note of the 8 March telephone call bears the Applicant’s identifying CRN which matches the number on other material generated by Centrelink in respect of her affairs.[13]

    [12] See transcript of hearing, page 16, lines [40] to [45]; page 17, lines [9] to [12].

    [13] See, for example, the Emulator (Exhibit 2, Annexure 1) and Centrelink’s letters to the Applicant dated 11 March 2013 (Exhibit 1, T Documents, T15, pages 92 and 95).

21. Later, on two separate occasions, the Applicant denied having ever rung Centrelink.[14] However, she said that she did contact Centrelink by phone when she first registered with it. In contrast, in her statutory declaration she stated that she “usually” rang Centrelink when her circumstances changed.[15] 

    [14] See transcript of hearing, page 20, lines [14] to [16]; page 21, lines [43] to [45].

    [15] See Exhibit 2, Applicant’s statutory declaration, paragraph [59].

22. Similarly, she denied any delay in receiving the FTB payment,[16] despite the Centrelink records showing that she only received the payments in mid-March. The Applicant also disavowed having checked the position with her FTB payment at the 11 March meeting at Atherton,[17] even though the Emulator printout was specifically printed and given to her detailing future payments. As the only notation by the Centrelink officer on the Emulator printout related to the FTB payment,[18] it is difficult to accept that it was not a topic of discussion at that meeting.

    [16] See transcript, page 17, lines [20] to [27]; page 20, lines [3] to [4]; page 22, lines [3] to [22].

    [17] See transcript of hearing, page 17, lines [23] to [27]; page 19, lines [41] to [47].

    [18] See Applicant’s statutory declaration, paragraph [48], Exhibit 2; transcript of hearing, page 12, lines [23] to 27].

23. There were also inconsistencies between the testimony of the Applicant and her partner. In response to the question whether they had given copies of the court orders to the Centrelink officer, the Applicant replied that they were in the car, but the officer did not want to see them,[19] whereas her partner did not believe they had copies with them.[20]  Significantly, the Applicant and her partner also disagreed on how Centrelink described their relationship with their son. When questioned on the notation in the Centrelink record of 11 March, the Applicant said that the description “children in care. Yes-newborn- FTB current-partner”[21] was incorrectly recorded by the officer. However, her partner testified that he recalled that, while the Applicant was present and sitting next to him at the meeting, there was a discussion about her getting FTB. He remembered saying that he was not the principal carer of the baby, but that the Applicant was.[22]

    [19] See transcript of hearing, page 18, lines [18] to [21].

    [20] See transcript of hearing, page 29, lines [2] to [3].

    [21] See transcript of hearing, page 18, lines [36] to [40].

    [22] See transcript of hearing, page 28, lines [13] to [25].

24. I also have some difficulty with the inconsistency in the level of detail in the notes. While the note of 11 March is particularly detailed about the partner’s employment matters, it is surprising that the note contains little or no detail of the information allegedly given to the officer about the son’s care and arrangements, and the implications for the Applicant and the partner. In particular, it is completely silent on the topics of foster care, temporary court orders and guardianship, all of which the Applicant says were discussed during the meeting.

25. On balance, I find the alternative case hypothesis more persuasive, especially given its coherence and internal consistency; it is inherently plausible.  That is to be contrasted with the Applicant’s evasiveness on some quite innocuous matters and the inconsistencies in her own evidence and with that of her partner.

26. Counsel for the Applicant submitted that the failure to call the former Centrelink officer would justify me inferring that there was nothing which that witness could say which would assist the Secretary’s case. Given the explanation for the failure to call her and the relatively short notice given in that regard (a matter of a few business days before the hearing), and my views otherwise on the respective hypotheses, I do not draw any adverse inference from that failure.

27. For the reasons outlined above, I am not persuaded that the Commonwealth made an administrative error, as alleged. In case I am wrong on that point, I nevertheless deal with the remaining aspects of these provisions as if they were applicable.

    Solely attributable to error by the Commonwealth?

28. Assuming, contrary to the conclusion that I have reached, that it could be said that the Commonwealth was in error by reason of the Centrelink officer giving incorrect advice as to the Applicant’s entitlements, the question arises as to whether the debts were “attributable solely” to that administrative error.  Those words have been said to mean that “the only cause that objectively can be ascribed to the relevant debt is an administrative error.”[23]

    [23] See Sekhon v Secretary, Department of Family and Community Services (2003) FCR 126, [35] (Selway J).

29. There is no doubt that the Applicant was required to notify Centrelink if there were significant changes to her circumstances of the nature set out in the various correspondence she received.[24] It is equally clear that the Applicant was well aware of her obligations in that respect. In her statutory declaration, she said that she was aware that with every statement there was an attachment to the effect that Centrelink was to be notified if her circumstances changed.[25] Although she says that she read the list originally, she did not refer to it again after 11 March as she had already informed Centrelink of the change in circumstances. She did say, however, that she would still read the first page of the letter “as I always have,” to make sure she did not have any appointments.[26]

    [24] See s 68(2) of the Social Security (Administration) Act 1999 (Cth).

    [25] Exhibit 2, Applicant’s statutory declaration declared 13 May 2015, paragraph [59].

    [26] See transcript of hearing page 21, lines [38]-[41] and page 22, lines [42]-[44].

30. When asked specifically during cross-examination whether she had read the letter of 11 March concerning FTB and in particular, the passage that said that, in order to avoid being overpaid Baby Bonus, she must tell Centrelink if her son left her care, the Applicant said she was not sure.[27] In re-examination, she said that had she seen that passage, she would have thought that she had already notified Centrelink of that matter.[28] Similar explanations were given by the Applicant as to why she did not notify Centrelink after each of the court appearances concerning her son.[29]

    [27] See transcript of hearing, page 22, lines [30]-[38].

    [28] See transcript of hearing, page 23, lines [35]-[43].

    [29] See transcript of hearing, page 23, lines [1]-[18].

31. Notwithstanding the Applicant’s explanations, the question remains whether, at some time after 11 March, circumstances arose which went beyond what had been notified to the Centrelink officer and what the Applicant and her partner understood to be Centrelink’s particular interest, so as to warrant further disclosure by her. In his statutory declaration, the partner said that the officer told them that if the Applicant still had guardianship of the child, she would still be entitled to PP. He understood that to mean that “so long as (the child) was still under our power – so long as (the Applicant) and me could still make the decisions for him about his medical things and his general care – so long as we still had those decisions for (the son), (the Applicant) would still get the Parenting Payment from Centrelink”.[30]

    [30] Exhibit 3, partner’s statutory declaration dated 15 June 2015, paragraph [13].

1. In parallel with the ongoing legal battles over the son, there were significant developments occurring with respect to his care. On 26 March, the son was released from hospital into foster care. The Applicant, her mother and partner saw him on 28 March at the office of Child Safety Services. It was then that they met the foster mother for the first time.[31] She explained the dosage of the son’s medication and then left him with them for two hours.[32] They next saw him on 4 April, when the foster parents brought him to the hospital for a doctor’s appointment. There was no representative from Child Safety Services present. The doctor told the Applicant and her partner to wait outside, but let them in after the medical appointment had finished. She told them that their son might have cerebral palsy and she later told Child Safety Services that she did not want either the Applicant or the partner at future appointments.[33]

   [31] Exhibit 2, Applicant’s statutory declaration dated 13 May 2015, paragraph [52].

   [32] Exhibit 2, Applicant’s statutory declaration dated 13 May 2015, paragraphs [54]-[55].

   [33] Exhibit 2, Applicant’s statutory declaration dated 13 May 2015, paragraph [59].

2. In her testimony at the hearing, the Applicant said that they saw their son between March and May once a week for about two hours in Cairns (about a two hour drive from their home[34]). Following that, a new case manager took over, and they were not given any dates on which they could see their son; they saw Child Safety Services at court and wrote to them, but got no response until a new case manager took over in September. From then, they saw the son in Atherton (about 45 minutes to an hour’s drive[35]) once a fortnight until June or July 2014.[36]

   [34] See transcript of hearing, page 10, lines [38] to [40].

   [35] See transcript of hearing, page 10, line [45].

   [36] See transcript of hearing, page 12, line [36] to [46] and page 13, lines [1] to [14].

3. It seems clear that from late March onwards, neither the Applicant nor her partner could have been under any illusion that their son remained under their control. They did not exercise daily control of him, nor seemingly had any say in his medical treatment or when they might see him, and on what terms. Even though no formal order of guardianship had been made at that stage, the Applicant and her partner could not have been said in any way to have care of their son; nor could he be said to be their dependant. Even if it were accepted that the Centrelink officer had given the incorrect advice on 11 March, the circumstances had altered dramatically by late March (and then subsequently), such that they should have been notified to Centrelink, as was the Applicant’s obligation. Her failure to do so contributed at least significantly, if not entirely, to the debt. I therefore consider that even if there was an administrative error by the Commonwealth, the debt was not solely attributable to it; the Applicant has to accept significant responsibility for it.

   Summary

4. It follows from what I have said that I do not consider that the debts can be said to be attributable solely to an administrative error of the Commonwealth. I am not persuaded, on the available evidence, that there was an error by the Commonwealth. Even if there were an error, I consider that the debt was not solely attributable to it; the Applicant contributed significantly to the debt in failing to notify Centrelink of significant changes of circumstances, which she was obliged to do. Therefore, I consider that neither s 1237A of SSA nor s 97 of FAA has application in this case and that it is not appropriate to waive any part of the debts under those sections.

   Waiver due to special circumstances

   The legislative provisions

5. The relevant provision in the FAA (s 101) is in substantially the same terms[37] as s 1237AAD of SSA, which reads as follows:

   [37] Section 101(a)(ii) of the FAA reads: “failing or omitting to comply with a provision of the family assistance law:”.

   The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

   a)the debt did not result wholly or partly from the debtor or another person knowingly:

   i.making a false statement or a false representation; or

   ii.failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and

   b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and

   c)it is more appropriate to waive than to write off the debt or part of the debt.

6. This and similar provisions have been the subject of much consideration by the courts and the Tribunal over the years. It is unnecessary, for present purposes, to discuss those decisions in detail. However, there are a couple of points which I should mention.

7. First, the term “knowingly” in paragraph (a) is not defined. However, the deliberate use of that word requires that there be some element of intent in making the representations or in the failure to comply with the Act. As Deputy President Forgie observed in Re Callaghan and Secretary, Department of Social Security:

   There is nothing in s 1237AAD which suggests that the word “knowingly” should be given any meaning other than that a person has actual knowledge, rather than constructive knowledge, that he or she is making a false statement or representation or that he or she is failing or omitting to comply with a provision in the Act. That actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement or the act or omission.[38]

   [38] (1996) 45 ALD 435, [48].

8. In Re Davy and Secretary, Department of Employment and Workplace Relations, Deputy President Forgie expanded on those observations by concluding 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.[39]

   [39] (2007) 94 ALD 693, [74] citing Re Secretary, Department of Family and Community Services and Jonauskas [2001] AATA 72.

9. The term “special circumstances” is likewise not defined in the Act, but has been extensively considered in case law. It has often been said that the expression looks to circumstances that are unusual, uncommon or exceptional, or which “have a particular quality of unusualness that permits them to be described as special”.[40]

   [40] Beadle and Director-General of Social Security (1984) 6 ALD 1, 3, [2].

   Knowingly failing or omitting to comply with a provision of the Act?

10. Before I deal with the question of whether there are special circumstances in this instance, I should mention briefly paragraph (a) of the sections and whether it can be said that the debts did not result from the Applicant knowingly failing or omitting to comply with the relevant legislation.

11. Earlier, I concluded that the Applicant contributed significantly to the debts by failing to disclose the significant change in circumstances. The question is whether that failure was made “knowingly”, so as to attract the attention of paragraph (a) of the respective sections.

12. When one considers the events of late March 2013 to September 2013, and the nature, extent and terms of contact which the Applicant and her partner had with their son, an obvious question arises: given the limited contact they had with him, and their apparent lack of authority over him, why did they think they were still receiving, and believe they were entitled to receive, PP and FTB? Is that obvious, but unanswered, question one which points to a knowing failure or omission on the part of the Applicant? 

13. On the material before me, I do not think that there is evidence that the Applicant “knowingly” failed or omitted to comply with the legislation, in the sense that expression is understood under the relevant Acts. At its highest, there might have been a conscious decision to refrain from making enquiries, but that is not sufficient for the purposes of paragraph (a), especially given the peculiar circumstances in which the Applicant and her partner found themselves. They were young and inexperienced parents, the Applicant having fallen pregnant in her last year of school. Their son was born premature, was in hospital for the first few weeks of his life, and suffered ongoing health problems. The Applicant also experienced her own health problems, which no doubt would have been debilitating. On top of that, they had to deal with issues raised by Child Safety Services, as well as become embroiled in what appears to have been a protracted legal battle concerning their son. 

14. While those factors do not provide an answer to why the Applicant and her partner thought she was entitled to ongoing benefits when they had little or no contact with their son or daily responsibility for his welfare, they perhaps go some way to explaining why no steps were taken to notify Centrelink of the changed circumstances, even though they were aware of the Applicant’s obligation to do so.

    Special circumstances?

15. As to whether the Applicant’s circumstances were sufficiently special to warrant waiver of the debt, her counsel referred me to the decision in Wilson v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs,[41] which bore a number of similarities to the present matter.  However, I consider that decision is distinguishable on several grounds. In that case, the Applicant voluntarily contacted the Department and volunteered that she had incorrectly received benefits; in the present case, the incorrect payments and debts were only revealed after the Department was contacted by a third party. In that case, also, the Applicant had already paid back a substantial proportion of the debt by the time of the hearing.

    [41] [2012] AATA 154.

16. That said, it seems to me that there are a number of factors to be considered in the present case: the Applicant’s health; the financial hardship she and her partner suffer; and the question of whether she probably would have been entitled to an alternative payment during the relevant period.

17. The Applicant’s health, of itself, is a factor that needs to be considered. Since the birth of her son, she has suffered pelvic pain and not long before the hearing, discovered she had a ruptured cyst on her ovary. She had been seeing her general practitioner and had seen a gynaecologist in Cairns a couple of times. Her condition has involved added expense in her having to take strong painkillers, and use heating packs.[42] I think those circumstances are unusual or uncommon enough so as to amount to special circumstances.

    [42] See transcript of hearing, pages 14 and 15.

18. There is no doubt that the Applicant and her partner suffer financial hardship.  She has no income apart from her Centrelink payments and has no savings or financial resources. Her partner is a farm labourer who undertakes seasonal work.[43] That said, financial hardship alone is not a special circumstance. Such matters, by themselves, are not uncommon or exceptional; many recipients of social service benefits are in not dissimilar circumstances.  What is unusual here are the Applicant’s ongoing medical problems (and attendant expenses), not to mention the legal costs they would have incurred in the protracted battle concerning their son.  Living in regional Queensland, the Applicant and her partner also had the additional expense of travel to get to appointments and visit their son. On the other hand, I note they have the support of the Applicant’s parents who give them food and provisions, and some cash.[44]

    [43] See Exhibit 7, Statement of Financial Circumstances dated 21 July 2015.

    [44] See Exhibit 1, T Documents, T 2, page 5, Decision and Reasons for Decision of SSAT dated 28 May 2014, paragraph [8].

19. The Applicant’s notional entitlement (being a benefit, not actually claimed by the Applicant, but to which she would have been entitled had she applied for it[45]) to an alternative benefit may be considered a special circumstance and taken into account when considering the desirability of waiver. Following the discontinuance of her PP and FTB, the Applicant, after a delay of some six months,[46] eventually applied for, and obtained, Youth Allowance, although it has since been suspended on a couple of occasions.[47] In light of the fact that she has since qualified for that allowance, I consider it probable that she would have similarly qualified for it during the relevant period.

    [45] See Oberhardt v Secretary, Department of Education, Employment and Workplace Relations and Anor (2008) 174 FCR 157, [32].

    [46] Exhibit 4, Secretary’s Outline of Submissions dated 9 October 2014, paragraph [33c].

    [47] See transcript of hearing, page 47, lines [5] to [7].

20. Taking into account the special circumstances I have identified, I do not consider that the debts should be waived in full. As is often said, the taxpayer is entitled to expect that in the ordinary course, money paid to people which they are not entitled to receive will be recovered.[48] I am also conscious of the fact that the Applicant contributed significantly to the debts by her failure to notify a significant change in circumstances.

    [48] Secretary, Department of Social Services v Hales (1998) 82 FCR 154, 155 (French J).

21. However, I do think that the special circumstances I outlined above make it desirable to waive at least part of the debts, especially given the Applicant’s ongoing health problems and the fact that she would probably have been entitled to an alternative allowance, such as Youth Allowance, during the relevant period.

22. According to her Statement of Financial Circumstances,[49] the Applicant currently receives about $360 per fortnight in Centrelink payments, although that can vary.  I appreciate that figure is the approximate current amount being paid to her, and may be a net amount after a debt repayment component is deducted. By the same token, the base rate of Youth Allowance in 2013 would likely have been less than what it is now. There are also some questions, based on her delay in applying for Youth Allowance and the subsequent suspensions of it, that the Applicant may not have received the allowance for the whole period in question, even if she could have qualified for it. Taking those matters into account, and without intending to undertake a precise calculation, I propose to use that current amount for the exercise of putting a figure on the notional entitlement. Applying that figure over about a 30 week period, that would come to, in round terms, about $5,400.00 which the Applicant could probably have expected to receive had she been entitled to that allowance at the time. I therefore consider that that amount should be waived from her PP debt, reducing that debt to $1,566.86 (in addition to the existing FBT debt).

    [49] Exhibit 7, page 2.

23. Having regard to the Applicant’s health condition and age, and in order to enable her and her partner to move on with some certainty, I consider that it is more appropriate to waive, rather than write-off, that amount.

    CONCLUSION

24. The decision under review is set aside and a decision substituted that:

    (c)$5,400.00 of the debt in respect of the Parenting Payment debt is waived, such that the amount of Parenting Payment debt due to the Commonwealth is $1,566.86; and

    (d)The amount of Family Tax Benefit debt due to the Commonwealth is $3,815.75.

I certify that the preceding 55 (fifty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A C Cotter

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

Associate

Dated 17 September 2015

Date of hearing	22 July 2015
Counsel for the Applicant	Mr M Black
Solicitors for the Applicant	Legal Aid Queensland
Solicitors for the Respondent	Lander and Rogers