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

Kilner and Secretary, Department of Social Services (Social services second review) [2020] AATA 1368 (14 May 2020)
Division:GENERAL DIVISION
File Number: 2019/4115
Re:Ms Tenisha Kilner
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Belinda Pola, Senior Member
Date:14 May 2020
Place:Brisbane

The Decision under review is affirmed.
..................................[SGD]......................................
Belinda Pola, Senior Member
Catchwords
SOCIAL SECURITY – parenting payment single – overpayment – administrative error – whether overpayment constitutes a debt to the Commonwealth – whether overpayment is recoverable in full – whether debt can be written off or waived – decision under review affirmed.
Legislation
Social Security Act 1991 (Cth) ss 8(1), 503, 1072, 1073B, 1223, 1236, 1237A, 1237AAD
Social Security (Administration) Act 1999 (Cth) ss 68(2), 179
Cases
Beadle and Director-General of Social Security (1984) 6 ALD 1
Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435
Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190
Secretary, Department of Social Security v Hales (1998) FCA 219
Timothy Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114
REASONS FOR DECISION
Belinda Pola, Senior Member
14 May 2020
BACKGROUND

The Applicant, Ms Tenisha Kilner was granted the Parenting Payment Single (‘PPS’) from 22 February 2016[1].
[1] Exhibit 1, T11, page 109.
On 7 September 2016[2], the Applicant contacted the Department of Human Services (the ‘Department’) and updated her employment income effective from 17 June 2016 at $604.00 per week. The Department’s mainframe records coded the Applicant’s earnings as fortnightly and not weekly, “Frequency: Fortnightly, Gross Amount: $604.00”[3].
[2] Exhibit 1, T12, page 130.
[3] Exhibit 1, T12, page 130.
The Respondent in this matter has made it clear that they do not challenge the Applicant’s evidence that they made the correct disclosure of income on a weekly basis when they contacted the Department on 7 September 2016. The Respondent accepts that for reasons unknown, the Applicant’s income was incorrectly recorded in the Department’s system on a fortnightly basis[4].
[4] Exhibit 3, paragraph 6, page 2.
The Applicant continued to receive PPS based on fortnightly earnings of $604.00 (rather than weekly earnings of $604.00) for the period of 2 July 2016 through to 12 July 2018[5].
[5] The Applicant’s earnings were continuously reported at $604.00 p/fortnight from 2 July 2016, as per
Exhibit 1, T12, page 143.
Notices were sent by the Department to the Applicant in accordance with s68(2) of the Social Security (Administration) Act 1999 (Cth) (the ‘Administration Act’), on 7 September 2016[6]; 9 February 2017[7]; 27 March 2017[8]; 18 October 2017[9];8 November 2017[10]; 9 January 2018[11]; 10 January 2018[12]; 11 January 2018[13]; 16 March 2018[14]; 17 April 2018[15];19 April 2018[16]; 28 April 2018[17]; 28 May 2018[18]; 11 June 2018[19]; 24 June 2018[20]; and 29 June 2018[21].
[6]     Exhibit 1, T4, page 28 to 30; and Exhibit 2, ST1, page 179.
[7]     Exhibit 1, T5, page 31 to 32; and Exhibit 2, ST1, page 196 and 197.
[8]     Exhibit 1, T 6, page 33 to 34; and Exhibit 2, ST1, page 203 and 204.
[9]     Exhibit 2, ST1, page 220 to 222.
[10]    Exhibit 2, ST1, page 225 to 227.
[11]    Exhibit 2, ST1, page 228 to 230; repeated at ST1, pages 231 to 233.
[12]    Exhibit 2, ST1, page 234 to 236; repeated at ST1, page 237 to 239; repeated at ST1, page 240 to 242; repeated ST1, page 243 to 245.
[13]    Exhibit 2, ST1, page 246 to 248.
[14]    Exhibit 2, ST1, page 254 to 256.
[15]    Exhibit 2, ST1, page 257 to 259.
[16]    Exhibit 2, ST1, page 262 to 264.
[17]    Exhibit 2, ST1, page 265 to 267.
[18]    Exhibit 2, ST1, page 268 to 270.
[19]    Exhibit 2, ST1, page 272 to 274.
[20]    Exhibit 2, ST1, page 275 to 277.
[21]    Exhibit 2, ST1, page 278 to 280.
Notices sent by the Department to the Applicant in the abovementioned paragraph, advised the Applicant (amongst other items), that the amount of PPS they received was dependent on their declared income to the Department. The notices advised the Applicant to notify the Department of a change in their circumstances, in particular, to any change in their income.
The Applicant had sought to update their income on two occasions, being  7 September 2016[22] and 16 July 2018[23].
[22]   Exhibit 1, T12, page 130.
[23]    Exhibit 1, T11, page 115; and T12, page 137 and 138.
On 16 July 2018, the Applicant contacted the Department and updated their income to advise they had commenced full-time work from 9 July 2018. The Applicant advised the Department that their earnings for the period 2 July 2016 through to 9 July 2018 were in fact $1,064.00 per fortnight (as opposed to $604.00 per fortnight). Further, the Applicant advised the Department that for the period from 10 July 2018, their weekly income was $765[24].
[24] Exhibit 1, T11, page 115; and T12, page 137 and 138.
On 26 October 2018, the Department determined the Applicant had a legally recoverable debt of $9,936.00 for PPS which had been received between 2 July 2016 and 12 July 2018, on the basis the Applicant had under declared income[25].
[25] Exhibit 1, T12, page 141; and Exhibit 2, ST1, page 287.
On 4 December 2018, an Authorised Review Officer (‘ARO’) internally reviewed the original decision of the Department, set that decision aside and instead decided to alter the time period of the PPS debt. This was done on the basis that the first notice sent to the Applicant notifying them that their income had been incorrectly recorded, was sent on 7 September 2016[26] (with this notice stipulating the Applicant’s earnings being reported on a fortnightly basis instead of a weekly basis).
[26] Exhibit 1, T4, page 28 to 30; and Exhibit 2, ST1, page 179. The notice was sent in accordance with s68(2) of the Administration Act.
The time period relating to the overpayment in the original decision was from 2 July 2016 to 12 July 2018. The ARO altered the time period to take effect from 7 September 2016 to 12 July 2018. The effect of this amended decision reduced the Applicant’s debt to $8,858.29[27].
[27] Exhibit 1, T12, page 143; and Exhibit 2, ST1, page 289.
On 31 May 2019[28], the Social Services & Child Support Division (‘SSCSD’) of the Tribunal affirmed the amended decision under review.
[28] Exhibit 1, T2, page 5 to 13.
On 9 July 2019[29], the Applicant applied to the General Division of the Tribunal for a second review of the decision.
[29] Exhibit 1, T1, page 1 to 4.
JURISDICTION
This is an application to review a decision of the SSCSD of the Tribunal, which affirmed a decision to raise a PPS debt of $8,858.29[30] for the period of 7 September 2016 to 12 July 2018.
[30] Exhibit 1, T12, page 143; and Exhibit 2, ST1, page 289.
Section 179 of the Administration Act states:
179 Application for AAT second review
(1) Application may be made to the AAT for review (AAT second review) of a decision of the AAT on AAT first review made under subsection 43(1) of the AAT Act.
(2) For the purposes of subsection (1), the decision of the AAT on AAT first review is taken to be:
(a) if an AAT first review affirms a decision—that decision as affirmed; or
(b) if an AAT first review varies a decision—that decision as varied; or
(c) if an AAT first review sets a decision aside and substitutes a new decision—the new decision; or
(d) if an AAT first review sets a decision aside and sends the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the AAT—the directions or recommendations of the AAT.
In accordance with s179(1) of the Administration Act the Tribunal has jurisdiction to hear the Applicant’s application of 9 July 2019.
ISSUES
The issues for consideration by the Tribunal in this Application are:
(a)whether the Applicant was overpaid PPS, amounting to a debt of $8,859.29 for the period of 7 September 2016 to 12 July 2018;
(b)whether the overpayment of PPS constitutes a debt to the Commonwealth; and
(c)whether the overpayment is recoverable in part or in full.
RELEVANT LEGISLATIVE PROVISIONS
Parenting Payment
Section 503 of the Social Security Act 1991 (Cth) (the ‘Act’), sets out how to determine the rate of Parenting Payment for a person:
503 How to work out a person’s parenting payment rate
A person’s parenting payment rate is worked out using:
(a) if the person is not a member of a couple—the Pension PP (Single) Rate Calculator at the end of section 1068A (see Part 3.6A);
…
Section 1068A of the Act sets out various Modules which step out components of the calculation which form a person’s parenting payment rate. Of note is Module E, which states that an individual’s ordinary income is worked out on a yearly basis in order to determine the effect of a person’s ordinary income on the person’s maximum rate of payment.
Ordinary income is defined in s8(1) of the Act, which provides:
…
income, in relation to a person, means:
(a) an income amount earned, derived or received by the person for the person’s own use or benefit; or
(b) a periodical payment by way of gift or allowance; or
(c) a periodical benefit by way of gift or allowance;
but does not include an amount that is excluded under subsection (4), (5) or (8).
Note 1: See also sections 1074 and 1075 (business income), Division 1B of Part 3.10 (income from financial assets (including income streams (short term) and certain income streams (long term)), Division 1C of Part 3.10 (income from income streams not covered by Division 1B of Part 3.10), section 1099F (exempt bond amount does not count as income) and section 1099K (refunded amount does not count as income).
Note 2: Where a person or a person’s partner has disposed of income, the person’s income may be taken to include the amount which has been disposed of—see sections 1106-1112.
Note 3: Income is equivalent to ordinary income plus maintenance income.
…
Section 1072 of the Act provides:
1072 General meaning of ordinary income
A reference in this Act to a person’s ordinary income for a period is a reference to the person’s gross ordinary income from all sources for the period calculated without any reduction, other than a reduction under Division 1A.
Note 1: For ordinary income see subsection 8(1).
…
The Tribunal notes that Division 1A referred to in s1072 of the Act is not relevant to this Application.
Section 1073B of the Act is relevant to this Application, as it relates to the daily attribution of employment income, and provides:
1073B Daily attribution of employment income
(1) If:
(a) a person is receiving a social security pension or a social security benefit; and
(b) the person’s rate of payment of the pension or benefit is worked out with regard to the income test module of a rate calculator in this Chapter; and
(d) the person earns, derives or receives, or is taken, either by virtue of the operation of section 1073A or any other provision of this Act, to earn, derive or receive, employment income during the whole or a part of a particular instalment period of the person; the person is taken to earn, derive or receive, on each day in that instalment period, an amount of employment income worked out by dividing the total amount of the employment income referred to in paragraph (d) by the number of days in the period.
(2) If a person has reached pension age and is receiving a social security benefit, subsection (1) does not apply to the person, to the extent that it relates to that benefit.
Note 1: Subsection (1) applies to a person who has not reached pension age and is receiving a social security benefit.
Note 2: For pension age see subsections 23(5A), (5B), (5C) and (5D).
Debts
The following paragraphs outline relevant legislative provisions which apply to debts incurred resulting from a lack of qualification for a payment, or an overpayment. A debt pursuant to subsection 1223(1) of the Act is incurred when:
1223 Debts arising from lack of qualification, overpayment etc.
(1) Subject to this section, if:
(a) a social security payment is made; and
(b) a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;
the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.
…
Writing off a debt
Section 1236 of the Act provides that the Secretary may write off debt:
1236 Secretary may write off debt
(1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
(c) the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d) it is not cost effective for the Commonwealth to take action to recover the debt.
(1B) For the purposes of paragraph (1A)(a), a debt is taken to be irrecoverable at law if, and only if:
(b) there is no proof of the debt capable of sustaining legal proceedings for its recovery; or
(c) the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or
(d) the debtor has died leaving no estate or insufficient funds in the debtor’s estate to repay the debt.
(1C) For the purposes of paragraph (1A)(b), if a debt is recoverable by means of:
(a) deductions from the debtor’s social security payment; or
(b) deductions under section 84 of the A New Tax System (Family Assistance) (Administration) Act 1999; or
(c) setting off under section 84A of that Act;
the debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the debtor being in severe financial hardship.
(2) A decision made under subsection (1) takes effect:
(a) if no day is specified in the decision—on the day on which the decision is made; or
(b) if a day is specified in the decision—on the day so specified (whether that day is before, after or on the day on which the decision is made).
(3) Nothing in this section prevents anything being done at any time to recover a debt that has been written off under this section.
Administrative error
Section 1237A of the Act provides that:
1327A Waiver of debt arising from error
(1) 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.
Note: Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other error by the debtor).
…
Special circumstances
Section 1237AAD of the Act provides that:
1237AAD Waiver in special circumstances
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.
…
CONSIDERATION
The Application was heard in Brisbane on 14 April 2020. The Applicant appeared by phone and was self-represented. The Respondent also appeared by phone and was represented by Mr Chris Murphy. The Tribunal considered oral submissions made by both the Applicant and the Respondent, along with submitted evidence as outlined in the Exhibit Register (refer to Annexure 1).
Whether the Applicant was overpaid Parenting Payment Single?
The Applicant was in receipt of PPS, incorrectly calculated on the basis of fortnightly earnings of $604.00, instead of actual fortnightly earnings of $1,064.00, for the period of 2 July 2016 through to 9 July 2018[31].
[31] Exhibit 1, T11, page 115; and T12, page 137 and 138.
The Tribunal finds that the amount of PPS paid to the Applicant was based on incorrect income earned during the period of 2 July 2016 through to 12 July 2018, and pursuant to s503 of the Act, the Applicant would have been entitled to a lower payment of PPS during this period.
This in turn resulted in an overpayment of $9,936.00 in PPS for the period of 2 July 2016 through to 12 July 2018.
The Respondent in this matter has accepted that for the period 2 July 2016 through to 6 September 2016, the Applicant had been receiving their PPS payment in good faith, as the Applicant had reported their earnings correctly.
The Respondent has accepted sole administrative error as the reason for the debt which accumulated during the period 2 July 2016 through to and including 6 September 2016. The Respondent subsequently waived this portion of the Applicant’s debt reducing the debt from $9,936.00 to $8,858.29[32], with the balance of the debt covering the period of 7 September 2016 to 12 July 2018.
[32] Exhibit 3, page 2, paragraph 11.
The Tribunal finds that for the period of 2 July 2016 to 6 September 2016, the failure of the Department to accurately record the Applicant’s earnings amounted to sole administrative error for this period, which is discussed in later paragraphs of this Decision.
The Tribunal finds the Applicant was overpaid PPS during the period of 7 September 2016 through to 12 July 2018.
The Tribunal finds the Applicant was not entitled to the amount of PPS received during the period of 7 September 2016 through to 12 July 2018, on the basis that the amount of income which they had earned exceeded the income used to calculate the PPS which was paid to the Applicant.
Debt calculations were submitted in evidence totalling $8,858.29 for the period of 7 September 2016 through to 12 July 2018[33]. The Tribunal has reviewed these calculations and is satisfied the Applicant was overpaid PPS during this period by the amount of $8,858.29.
[33] Exhibit 1, T9, page 47 to 56; and T10, page 57 to 103.
Whether the overpayment of PPS constitutes a debt to the Commonwealth?
As outlined in earlier paragraphs of this Decision, s1223(1) of the Act states that for debts arising from overpayment (where a social security payment has been made to a person who obtains the benefit of a payment they were not entitled to), the amount of that payment is a debt due to the Commonwealth (arising from when the person obtains the benefit of the payment).
The Tribunal has found the Applicant received a greater amount of PPS than which they were otherwise entitled to receive during the period of 7 September 2016 through to 12 July 2018.
The Tribunal finds that the amount of PPS received by the Applicant totalling $8,858.29 is a debt due to the Commonwealth by the Applicant and constitutes a legally recoverable debt pursuant to s1223(1) of the Act.
Whether the overpayment is recoverable in part or in full?
In establishing whether the Applicant’s overpayment of PPS is recoverable in part or in full, the Tribunal refers to His Honour French J (as his Honour then was), in Secretary, Department of Social Security v Hales (1998) FCA 219, who stated:
“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, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the persons concerned. However, the confining of a recovery regime by rigid rules, particularly in this area of the law, is likely to be productive of unfair or harsh outcomes in some of the great variety of fact situations that can arise. There are provisions in the Act which recognise that reality. They relate to the writing off and the waiver of debts otherwise due to the Commonwealth.”

As previously outlined in this Decision, there are circumstances where the recovery of outstanding debts to the Commonwealth can be either written off or waived. Relevant to the Applicant’s legally recoverable debt, the Respondent may write off or waive the Applicant’s debt if the requirements set out in s1236, s1237A or s1237AAD of the Act are met.
Write off debt (s1236 of the Act)?
Section 1236 of the Act gives the Secretary power to write off the debt for a stated period or otherwise if one or more criteria are met in s1236(1A) of the Act (set out in earlier paragraphs of this Decision).
The Respondent stated that the Applicant’s debt was currently being recovered by the Department from the Applicant’s fortnightly PPS payments at an amount of $76.90, as a result of a payment arrangement that has been in place from 15 October 2019[34].
[34] Exhibit 3, page 5, paragraph 35.
The Applicant submitted to the Tribunal they had repaid a total of $2,817.08 at 14 April 2020[35], and they were currently employed in full time work[36].
[35] Transcript, page 9, line 21.
[36] Transcript, page 5, line 40; page 6, line 47; page 9, line 39 and 40.
The Tribunal was not presented with any corroborating evidence to suggest that the Applicant could no longer continue to repay the debt through fortnightly deductions from their current social security payment, as has been the case since 15 October 2019.
The Tribunal is satisfied that the debt is recoverable at law, the Applicant has the capacity to repay the debt, the whereabouts of the Applicant is known, and that there is no evidence to suggest it is not cost effective for the Commonwealth to take action to recover the debt.
The Tribunal finds that the Applicant’s debt to the Commonwealth cannot be written off pursuant to s1236 of the Act.
Waiver of debt arising from Administrative error (s1237A of the Act)?
Section 1237A of the Act provides that the Commonwealth 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.
The Tribunal refers to Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190, at paragraph 35, where the Full Federal Court observed:
“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…”
In the Application before the Tribunal, part of the Applicant’s debt has already been waived by the Respondent, for the period of 2 July 2016 to 6 September 2016. This was done so on the basis that the Respondent had conceded that an administrative error was made and the Department had incorrectly recorded the Applicant’s earnings.
The Tribunal finds that for the period of 2 July 2016 to 6 September 2016, the failure of the Department to accurately record the Applicant’s earnings amounted to sole administrative error for this period.
For the period following 7 September 2016 through to 12 July 2018, the Respondent has contended that the balance of the debt was not a result of sole administrative error, as notices were issued to the Applicant under s68(2) of the Administration Act, requiring the Applicant to notify the Department of a change in circumstances[37].
[37] Exhibit 3, page 6, paragraph 41 and 42.
The Tribunal has outlined the notices sent by the Department in accordance with s68(2) of the Administration Act in earlier paragraphs of this Decision.
The Tribunal heard evidence from the Applicant that they accessed the relevant notices sent by the Department through their online portal, despite some initial technical difficulties which were resolved when the Applicant contacted the Department[38]. The Applicant gave further evidence in relation to Income Statements sent by the Department on 18 October 2017[39], that they had only read the first page, and “don’t read all the fine print” as they had trusted the Department had entered their income correctly[40].
[38] Transcript, pages 7 and 8, lines 41 to 14.
[39] Exhibit 2, ST1, page 220 to 222.
[40] Transcript, page 8, line 30, repeated line 43.
In relation to the receipt of notices by the Applicant in accordance with s68(2) of the Administration Act, the Tribunal makes the same finding as Member Kidston of the SSCSD of the Tribunal on 31 May 2019, at paragraph 47, stating:
“Sections 28A and 29 of the Acts Interpretation Act 1901 (Cth) effectively operates to deem that a person has received a letter sent by prepaid post to their last known address unless the contrary is proved. Further, section 160 of the Evidence Act 1995 (Cth) presumes (unless there is evidence sufficient to raise doubt about the presumption) that a postal article sent by prepaid post to a person at a specified address in Australia was received at that address on the fourth day after which it was posted. Based on those provisions, and in the absence of evidence to the contrary, the Tribunal finds that Ms Kilner received the relevant letters, notices, and statements from Centrelink as reported in the Centrelink file.”
The Tribunal notes that 7 September 2016 is the date the first notice was sent by the Department in accordance with s68(2) of the Administration Act, advising the Applicant of the income the Department was using to calculate their payment (PPS), and that the Applicant should notify the Department if that was incorrect[41].
[41] Exhibit 1, T4, page 28 to 30; and Exhibit 2, ST1, page 179.
The Applicant did not update their income for the period 7 September 2016 through to 12 July 2018, despite receiving numerous notices from the Department sent in accordance with the Administration Act advising the Applicant to update their income if the income recorded in the notices was incorrect.
The Tribunal finds the Applicant’s debt of $8,858.29 to the Commonwealth for the period of 7 September 2016 through to 12 July 2018, was not attributable solely to administrative error, and therefore recovery cannot be waived pursuant to s1237A of the Act.
Waiver in special circumstances (s1237AAD of the Act)?
As outlined in earlier paragraphs of this Decision, s1237AAD of the Act provides:
1237AAD Waiver in special circumstances
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.
The Tribunal refers to Beadle and Director-General of Social Security (1984) 6 ALD 1, where the Tribunal, at paragraph 12, observed:
“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.”
The Tribunal refers to Timothy Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114, where the Tribunal at paragraph 80 observed:
“…“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. His not knowing that his father had continued to receive the money does not take him outside the expectation that all social security recipients should repay money when they receive money but are not entitled to it. 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.”
Section 1237AAD(a) of the Act requires the Secretary to waive the right to recover all or part of a debt if the Secretary is satisfied that the debt did not result wholly or partly from the Applicant knowingly making a false statement or representation, or knowingly failing to omit or comply with a provision of the Act or the Administration Act.
In regard to applying s1237AAD(a) of the Act, and the term “knowingly” in the circumstances of this Application, the Tribunal refers to Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435, where at paragraph 48 the Tribunal observed:
“There is nothing in section 1237AAD which suggests that the word "knowingly" should be given any meaning other than that a person has actual knowledge, rather than constructive knowledge, that he or she is making a false statement or representation or that he or she is failing or omitting to comply with a provision of the Act. That actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement or the act or omission.”
In the present Application before the Tribunal, the circumstances of the Applicant’s debt originated from sole administrative error. This error continued until such time as the Applicant had sought to update their earnings when their circumstances had changed (although the Applicant did not review or respond to notices sent by the Department with the incorrect earnings reported). It was the Applicant’s belief that their reported earnings had been correctly recorded by the Department, and the payment they were receiving was based off the earnings they had told the Department.
The Tribunal is of the view that the Applicant’s debts were not a result of false or misleading statements made by the Applicant or that the Applicant had knowingly failed to comply with the notices issued under the Administration Act.
The Tribunal acknowledges the Applicant’s oral submissions detailing the negative impact which this debt has had on their mental health[42], particularly in circumstances where the originating cause of the debt was sole administrative error. The Tribunal notes that the Applicant did not submit any corroborating evidence in relation to their mental health condition.
[42] Transcript page 9, lines 27 to 36.
The Applicant made oral submissions to the Tribunal that the debt was negatively impacting their current financial situation. Again, the Tribunal notes that the Applicant did not submit any corroborating evidence to support these claims for the Tribunal to consider whether the Applicant’s financial situation is such that it could be considered unusual, uncommon or exceptional.
Based on the evidence before the Tribunal, the Tribunal does not consider the Applicant’s circumstances are sufficiently special or unusual to warrant the exercise of the discretion in s1237AAD of the Act to waive the Applicant’s debt, therefore the Applicant’s debt cannot be waived pursuant to s1237AAD of the Act.
DECISION
The Tribunal concludes that the Applicant’s debt to the Commonwealth is correct and must be recovered. Write-off on the basis of severe financial hardship and waiver on the basis of administrative error, special circumstances or claims of notional entitlement is not warranted.
The Decision under review is affirmed.

I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Belinda Pola, Senior Member

.................................[SGD]....................................
Associate
Dated: 14 May 2020

Date of hearing: 14 April 2020

Applicant:
Ms Tenisha Kilner (self-represented, by telephone)

Solicitors for the Respondent: Mr Chris Murphy (by telephone)
Department of Human Services
‘Annexure 1 – Exhibit Register’

Exhibit

Number

Description

1

Section 37 T- Documents, received 12 August 2019, paged 1 to 152.

2

Supplementary T-Documents, received 11 December 2019, pages 153 to 289.

3

Respondent’s Statement of Facts Issues and Contentions, received 17 December 2019, pages 1 to 13.

[2020] AATA 1368

14 May 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Remedies

Procedural Fairness

Date of hearing:	14 April 2020
Applicant:	Ms Tenisha Kilner (self-represented, by telephone)
Solicitors for the Respondent:	Mr Chris Murphy (by telephone) Department of Human Services

Exhibit Number	Description
1	Section 37 T- Documents, received 12 August 2019, paged 1 to 152.
2	Supplementary T-Documents, received 11 December 2019, pages 153 to 289.
3	Respondent’s Statement of Facts Issues and Contentions, received 17 December 2019, pages 1 to 13.