La'Brooy and Secretary, Department of Social Services (Social services second review)

[2016] AATA 159

La'Brooy and Secretary, Department of Social Services (Social services second review) [2016] AATA 159 (18 March 2016)

Division	General Division
File Number	2015/2777
Re	Vivian La'Brooy
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President Dr Christopher Kendall
Date	18 March 2016
Place	Perth

The decision under review is affirmed.

.....................[sgd].............................................

Deputy President Dr Christopher Kendall

CATCHWORDS

SOCIAL SECURITY – Age pension – Member of a couple – Pension reduced to partner rate due to de facto relationship and marriage – Department not advised of relationship or marriage – Debt accruing due to overpayment of age pension – Whether discretion in section 24 of Social Security Act should be exercised – Whether debt is debt to the Commonwealth – Whether debt should be waived due to special circumstances or written off

LEGISLATION

Social Security Act 1991 – sections 4(2), 4(3), 24, 1064, 1236, 1237A, 1237 AAD

Social Security Administration Act1999 – section 68(2)

CASES

Re Drake and Minister for Immigration & Ethnic Affairs (No. 2) (1979) 2 ALD 634

SECONDARY MATERIALS

The Guide to Social Security Law – Part 2.2.5.50

REASONS FOR DECISION

Deputy President Dr Christopher Kendall

18 March 2016

INTRODUCTION

1. Mr Vivian Christopher E La'Brooy has been in receipt of age pension payments since he turned 65 in April 2011. He is currently 69 years old and has been living in Sri Lanka since April 2013.

2. On 30 July 2013, Mr La’Brooy married Cheryl Frayco Caquilala (“Mrs La’Brooy”) (T7 at 24).

3. On 6 June 2014, Mr La’Brooy contacted Centrelink and advised that he would not be returning to Australia to live. He also noted that he had recently married (T2 at 5). 

4. Mr La’Brooy seeks review of a decision of the Social Security Appeals Tribunal (the “SSAT”) made on 5 May 2015. The SSAT affirmed decisions made by Centrelink to the effect that:

   a)    Mr La’Brooy’s rate of age pension was reduced to the “partnered rate” from 25 June 2014; and

   b)    Mr La’Brooy was overpaid age pension in the period from 9 June 2013 to 24 June 2014 and that this overpayment is a debt to the Commonwealth.

5. This matter requires the Tribunal to determine whether Mr La’Brooy is being paid the correct rate of age pension and whether he owes a recoverable age pension debt.  Central to this issue is an analysis of any impact of Mr La’Brooy’s relationship with Mrs La’Brooy on his pension.

   FACTS

6. The Tribunal was greatly assisted by the Statement of Facts, Issues and Contentions prepared by the Secretary, Department of Social Services (the “Secretary”) dated 30 September 2015 (R2). The Tribunal notes, in particular, the outline of facts provided at paragraphs 2-17 of the Secretary’s Statement.

7. On 16 April 2013, Mr La’Brooy advised the Department that he intended to travel overseas on 25 April 2013 (T6 at 20).

8. The Secretary stated before this Tribunal that on the same day, the Department of Human Services (the “Department”) sent a letter to Mr La’Brooy advising him of the impact of his overseas travel on his entitlement to age pension (T6 at 20). The letter included the following statement:

   While you’re away if your payment remains current it will continue to be affected by any changes that would normally impact on it. For example if your relationship status changes, or your income or assets change such as receiving a new source of income from another country, your rate of payment may be reduced.

9. In oral evidence before this Tribunal Mr La’Brooy said that he did not recall receiving this letter. 

10. In its Statement of Facts, Issues and Contentions (“Written Statement”) the Secretary stated that, in relation to his age pension, Mr La’Brooy was sent numerous letters from the Department which advised him of the changes of circumstances of which he must inform the Department, including if he marries or commences a de facto relationship (T3 at 10-12; T4 at 13-16; T5 at 17-18). This issue will be addressed in more detail below.

11. In oral evidence before this Tribunal, Mr La’Brooy admitted receiving letters from Centrelink but could not recall receiving the letters referred to by the Secretary and found in the T documents before this Tribunal (Transcript, page 18 and 23). He also explained that he did not advise Centrelink of his marriage because he had been told orally by a Centrelink employee that if he married overseas, that marriage would have no impact on his pension arrangements in Australia. Mr La’Brooy explained in cross examination:

    Ms Ladhams: Did you receive letters in the past from Centrelink?

    Mr La'Brooy: Yes I always did.

    Ms Ladhams: So you were aware of your general reporting obligations to Centrelink about changes in circumstances.

    Mr La’Brooy: I did everything a (indistinct) should do with Centrelink situation, there was no query about that. It is on 16 April 2013 that this happened with Mr Gabriel and I was given the freedom for me to go anywhere and live without being a problem. I can live on my pension if my pension has not been reduced, even if I have got married to somebody that would not be affected. So what more can I say? I’ve been saying this from day one and the subject is here, it’s about marriage. When you’ve got to look into the proper sense of it as to why I had to leave the shores of Australia to make a living somewhere else because of the information that I had received from Centrelink that I made that move. I didn’t have to send anything of my things there, I had a lot of things there. I sold everything, all my paraphernalia. When you look at it, I had various things in there. So did I have to sell all that to come here? What reason? It doesn’t make any sense for me to believe – I believed in them, wholeheartedly, with Mr Gabriel especially because he assured me, and he also assured the gentleman who received (indistinct). When I finished the thing I gave the form to the gentleman and the gentleman has said that (indistinct), sir, you are free as a bird, you can go, and you heard what Mr Gabriel told you. I said, thank you very much.

12. It is noted that in evidence before the SSAT, Mr La’Brooy claimed that he had not received any letters from Centrelink (T2 at 7).  He also said this in his written statement to this Tribunal (discussed below) (A1 at para 4).  This is contrary to his oral evidence before this Tribunal.

13. As noted above, Mr La’Brooy married Mrs La’Brooy on 30 July 2013 (T7 at 24). He did not formally advise Centrelink of the marriage until June 2014.  He did so in correspondence with the Department, referring to his wife (T19 at 114–116).

14. When this happened, the Department asked for a “Partner Details” form to be completed (T19 at 113).  This was signed by Mrs La’Brooy and dated 25 June 2014 (T7 at 27). The evidence shows that Mrs La’Brooy declared on this form that she moved to Sri Lanka from the Philippines on 9 June 2013 and that the date of her marriage was 30 July 2013 (T7 at 24).

15. From 25 June 2014, Mr La’Brooy was paid age pension at a reduced rate as a result of his marriage (the “Original Rate Decision”) (T13 at 40).

16. On 10 July 2014, Mr La’Brooy queried the rate of his pension (T19 at 107).

17. On 14 July 2014, Mr La’Brooy requested a review of the Original Rate Decision (T19 at 105-106).

18. On 28 October 2014, an Authorised Review Officer (“ARO”) affirmed the Original Rate Decision (the “ARO Rate Decision”) (T8 at 28).

19. On 4 November 2014, a Centrelink officer made a decision to raise and recover a debt of $5,126.39 based on overpayments of age pension made to Mr La’Brooy in the period 9 June 2013 to 24 June 2013 (the “Original Debt Decision”) (T10 at 33).

20. On 4 February 2015, Mr La’Brooy requested a review of the Original Debt Decision (T19 at 85).

21. On 17 March 2015, an ARO affirmed the original debt decision (the “ARO Debt Decision”) (T11 at 35).

22. On 30 March 2015, Mr La’Brooy sought review by the Social Security Appeals Tribunal of the ARO Rate Decision and the ARO Debt Decision (T15 at 42).

23. On 5 May 2015, the Social Security Appeals Tribunal affirmed the ARO Rate Decision and the ARO Debt Decision (T2 at 4).

24. On 5 June 2015, Mr La’Brooy sought a review of the SSAT decision by the Administrative Appeals Tribunal (the “Tribunal”) (T1 at 1). 

25. Relevantly, Mr La’Brooy filed a written statement (A1) that read as follows:

    1.    The decision was based mainly on the evidence provided by the Centrelink. l find the decision by SSAT was bias and false findings, which I became a victim of circumstances.

    2.    The inquiries and/or Interviews and/or conversations arid/or testimonies I had with the officers of the Centrelink and International Human Resources were not recorded and thereby not considered in taking the above decision; more particularly conversation with Mr Gabriel and the staff Centrelink;

    3.    I was totally betrayed by Centrelink by providing wrong or misleading information to me by the officers who interviewed me on the 08^th February 2012, 10^th June 2012, 16^th November 2012 and finally on the 16^th April 2013.Particularly on the 16^th April 2013 when I arrived from abroad I had to go to Centrelink as that was one of their requirements. I spoke to a grey haired Gentleman in the front desk .Who phone linked me to International Human Resources Mr Gabriel, who assured me that after my testimony with him, again I stress the word assured that I have no problems going abroad and living my life, and giving me the affirmation you don't have to come back, due to your circumstances and that your age pension will not be affected. Even if you get married again it will not be valid in Australia until I get the said marriage registered in Australia. After accepting all the assurance on the 16^th April 2013. After my conversation with Mr Gabriel he wanted to speak to the officer who linked me. so [sic] was the case with the other interviews I had with Centrelink Morley that even if I got married it will not affect your pension as your marriage will not be recognized in Australia until its registered in Australia. So I made the move to sell all my paraphernalia as it was not a requirement for me to come back to Australia.

    4.    I have not received any letters from Centrelink particularly on the 16^th April 2013 as I was in the office of Centrelink. This must be absolutely hilarious entertaining.as I arrived on that day from abroad and in the office of Centrelink and Centrelink sent me a letter this is not possible.

    5.    I was not asked and/or required to give an overseas address as per their instruction that l do not require to come back to Australia.

    6.    I humble request you to consider the above facts, and grant me justice as I am presently going through severe hardships as a result of misinformation provided by the officers of Centrelink and International Human Resource. I was happy got married, but my world collided when my wife left me. So thank you Centrelink and International Human Resources for the happiness you brought a 69 years old man .and I am not a member of a couple. This is my true testimony. Let Justice prevail.  [sic]

26. This statement repeats a statement attached to Mr La’Brooy’s Application for Review dated 5 June 2015 (T1).

    ISSUES

27. The issues before this Tribunal were outlined by the Secretary in its Statement of Facts, Issues and Contentions dated 30 September 2015 as follows:

    ·whether Mr La’Brooy was “a member of a couple” from 9 June 2013 as per section 4 of the Social Security Act 1991 (the “Social Security Act”);

    ·whether the correct decision was made to reduce the rate of Mr La’Brooy’s age pension to the partnered rate;

    ·whether Mr La’Brooy was overpaid age pension;

    ·if so, whether the overpayment is a debt to the Commonwealth pursuant to section 1223 of the Social Security Act; and

    ·if so, whether the debt should be waived or written off pursuant to sections 1236, 1237A and 1237AAD of the Social Security Act.

28. The Tribunal is also asked to consider the possible application of section 24 of the Social Security Act, which allows the Secretary to treat a person as not being a member of a couple in some circumstances. An analysis of this section formed the basis of further written submissions from both the Secretary and Mr La’Brooy after the initial hearing of this matter. The Tribunal thanks both the Secretary and Mr La’Brooy for their assistance in relation to this issue.

    THE DECISION OF THE SSAT

29. The Tribunal notes the following summary of the evidence before the SSAT:

    9.Mr La’Brooy did not dispute that he did not tell Centrelink that he married Mrs La’Brooy until June 2014, when he inquired whether his wife might be eligible for carer allowance from Australia. Mr La’Brooy stated that he had contacted Centrelink on several occasions prior to his departure in April 2013 to seek advice on how his pension payment might be affected, if he lived overseas. He said that he was told his pension would not be affected if he lived overseas or if he got married overseas, as the marriage would not be recognised in Australia, until it was registered. He noted that this was said to him at an interview on 16 April 2013 (prior to his departure to Sri Lanka). I note a “portability script” was run on that day and Centrelink issued a notice (dated 16 April 2013) headed “Your plans to travel”.

    10.I have no other evidence about what was said on that occasion, however I note that the Centrelink letter (of 16 April 2013) advises Mr La’Brooy how his age pension payment will be affected, if he remains overseas. The notice clearly states that the age pension rate may be affected by a number of matters, including change of relationship status (such as getting married), it states (in part):

    While you are outside Australia your age pension may be paid indefinitely. After 42 days outside Australia your clean energy supplement can no longer be paid. Your pensioner concession card will be cancelled.

    After 26 weeks outside Australia your rate may be affected by the length of time you were an Australian resident between the age of 16 and age pension age.

    While you’re away, if your payment remains current it will continue to be affected by any changes that would normally impact on it. For example if your relationship status changes, or your income or assets change ........ your rate of payment may be reduced."

    [emphasis added]

    11.Mr La’Brooy told me that he could not recall receiving any letters from Centrelink and I note that the letter was sent to an Australian address (in Bedford, WA). From the documents provided by Centrelink it appears that Mr La’Brooy has not yet provided Centrelink with an address in Sri Lanka, as I note that all letters, including the authorised review officer’s letter of 17 March 2015, were sent to the address in Bedford, WA. It is incumbent upon Mr La’Brooy to ensure that he is able to receive notices from Centrelink concerning his payment.

    12.Mr La’Brooy did not dispute that he and Mrs La’Brooy are married, but he said that he would have never entered into a relationship had he been advised that his age pension rate would be reduced as a result.

    13.Mr La’Brooy told me that he met Mrs La’Brooy in the Philippines (where she was born). She had been working there as a "doctor’s assistant", earning a small wage. He is a very sick man and she became his carer. Eventually she joined him in Sri Lanka in June 2013 and they married in July 2013. Mr La’Brooy said that he was born in Sri Lanka and knows the culture and language. His extended family lives in Sri Lanka. He has dual citizenship (Australia and Sri Lanka) and it was much easier for him and his wife to live in Sri Lanka than in the Philippines.

    14.Mr La’Brooy told me that he lives in a rented flat, but his wife lives with some of her friends from the Philippines. She “comes and goes” to his place. He said since his pension has been cut, he is unable to afford paying for her, but he will give her “whatever little he has”. He does not know how she pays for her expenses. He thought that she might be “working” in her friends’ business, but he does not know. He does not ask about her financial affairs. His wife is in Sri Lanka on a spouse visa, which she needs to renew every year. It does not permit her to work.

    15.Mr La’Brooy did not dispute that he and Mrs La’Brooy are members of a couple, but since his pension was reduced he is in financial hardship and unable to support her. His issue is that he received the wrong advice from Centrelink employees and he should not now be penalised for following their advice. He said that had he been told that his age pension would be reduced, he would not have gotten married.

    EVIDENCE

30. This matter was heard by this Tribunal on 10 February 2016.  Mr La’Brooy appeared via telephone from Sri Lanka.  He was not legally represented.  Mr La’Brooy was quite frustrated with what he alleges was misleading information by Centrelink in relation to what impact, if any, his marriage to Mrs La'Brooy would have on his pension.  

31. The Tribunal had before it a 118 page bundle of T documents numbered T1 to T19.  The Tribunal also had before it a detailed Statement of Facts, Issues and Contentions dated 30 September 2015 from the Secretary, comprising 13 pages. 

32. In addition to the written statement provided by La’Brooy in his application (outlined above at paragraph 25 and dated 28 July 2015, the Tribunal also received a written statement from Mr La’Brooy dated 20 October 2015, which read as follows:

    All the department state of facts are contradictory. Once again bring this to your attention, all the information that … have received from Centrelink is corrupt and misleading an absolute cover up. Prior to my departure from Australia i have made trips to Centrelink Motley. These are the dates 08 February 2012, 08 June 2012, 16 November 2012 and finally on the 16 April 2013. when i seek help from Centre link about living abroad on an age pension. after the 16th April 2013,i had no contact with Centrelink or International Human Resources. As i was given the freedom to go abroad and get married and that my pension will not be affected and your marriage will not be recognized in Australia until its registered in Australia This was the final nail in the coffin it was the day that i was linked to talk with Mr Gabriel from Centrelink Office Morley .He was a grey haired bearded gentleman who after my conversation, Mr Gabriel wanted to speak to him. This grey haired Gentleman looked at me and said, your free to go. I cannot be more truthful. The only time that i contacted Centre link was on the day that i wanted to know if my Wife was eligible to get a carers allowance, and mind you it was only a query and i did not have to give any information about my wife as i was not asked and/or required to give an overseas address as per their instructions that i did not require to come back to Australia. All my inquiries and/or interviews and/or conversations and/or testimonies i had with the offices of the Centrelink and Intemation Humas Services were not recorded and thereby not considered in taking the above decision. MORE PARTICULARLY CONVERSATION WITH MR GABRIEL. I was totally mislead by providing wrong and false information to me by the officers of Centrelink and International Human Resources. and i stand firm to the end.If you need the dates on my PASSPORT i can send it to you.as a printout. I also received a letter from Human Services that they would like to make a without prejudice settlement offer to waiver the debt. I informed them that they also take note that i don’t acknowledge any debt to Centrelink. and not be responsible for mistakes made by Centrelink. This is my testimony to the truth. I am hoping for a [sic].

33. Following the hearing of this matter, the Secretary requested leave to file further written submissions in relation to section 24 of the Social Security Act. Written submissions were received from the Secretary on 1 March 2016. Mr La’Brooy then submitted a response to these submissions via email. This email response was received on 8 March 2016. Both submissions are discussed below.

    RELEVANT LEGISLATION

1. As advised by the Secretary in its Written Statement of 30 September 2015, the rate of age pension to which a person is entitled is set out in rate calculator A at the end of section 1064 of the Social Security Act. Pension Rate Calculator A at the end of section 1064 sets out a formula for calculating a person’s pension.

2. As further outlined by the Secretary, pursuant to Pension Rate Calculator A, a number of factors will affect the rate of pension payable to a person. Relevantly, section 1064-B1 sets maximum basic rates as the first step in the process of calculating a person’s pension rate. Importantly for Mr La’Brooy, the maximum basic rate for a person who is partnered is less than the maximum basic rate for a person who is not a member of a couple.

3. As further explained by the Secretary, other factors that might have an effect on Mr La’Brooy’s rate of pension include:

   ·where 2 people are members of a couple, they will be treated as pooling their income and assets and sharing them on a 50/50 basis, and they will also be treated as sharing expenses on a 50/50 basis (section 1064-A2);

   ·payment of age pension is subject to an income test, which is applied by reducing the rate of pension payable to a person by 50 cents for every dollar of income earned by the person which is above the income cut-out amount applicable to that person (see section 1064-E1-E11).

4. Hence, the rate of age pension payable to Mr La’Brooy will depend on whether he was a member of a couple during the relevant period of time – that being 9 June 2013 to 25 June 2014.

   Were Mr La’Brooy and his wife “a couple” during the relevant period?

5. The task for the Tribunal is to assess Mr La’Brooy’s relationship status during the period from 9 June 2013 to 25 June 2014 (the “Relevant Period”).

6. The term “Member of a Couple” is defined in sections 4(2) and 4(3) of the Social Security Act, which provides as follows:

   Member of a couple - general

   (2)Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:

   (a)the person is legally married to another person and is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or

   (aa)both of the following conditions are met:

   (i)a relationship between the person and another person (whether of the same sex or a different sex) is registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section;

   (ii)the person is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or

   (b)all of the following conditions are met:

   (i)the person has a relationship with another person, whether of the same sex or a different sex (in this paragraph called the partner);

   (ii)the person is not legally married to the partner;

   (iii)the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)), a de facto relationship;

   (iv)both the person and the partner are over the age of consent applicable in the State or Territory in which they live;

   (v)the person and the partner are not within a prohibited relationship.

7. Section 4(3) of the Social Security Act provides the following criteria for determining whether a person is a member of a couple, as follows:

   3)In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:

   (a)     the financial aspects of the relationship, including:

   (i)any joint ownership of real estate or other major assets and any joint liabilities; and

   (ii)any significant pooling of financial resources especially in relation to major financial commitments; and

   (iii)any legal obligations owed by one person in respect of the other person; and

   (iv)the basis of any sharing of day-to-day household expenses;

   (b)     the nature of the household, including:

   (i)any joint responsibility for providing care or support of children; and

   (ii)the living arrangements of the people; and

   (iii)the basis on which responsibility for housework is distributed;

   (c)the social aspects of the relationship, including:

   (i)whether the people hold themselves out as married to, or in a de facto relationship with, each other; and

   (ii)the assessment of friends and regular associates of the people about the nature of their relationship; and

   (iii)the basis on which the people make plans for, or engage in, joint social activities;

   (d)     any sexual relationship between the people;

   (e)     the nature of the people’s commitment to each other, including:

   (i)     the length of the relationship; and

   (ii)     the nature of any companionship and emotional support that the people provide to each other; and

   (iii)     whether the people consider that the relationship is likely to continue indefinitely; and

   (iv)    whether the people see their relationship as a marriage-like relationship or a de facto relationship.

8. In relation to whether Mr and Mrs La’Brooy were a couple during the Relevant Period, the Tribunal notes as follows.

9. Mrs La’Brooy moved to Sri Lanka to be with Mr La’Brooy on 9 June 2013. The couple married on 30 July 2013. For the period from 9 June 2013 to 29 July 2013, Mr La’Brooy was in a de facto relationship with Mrs La’Brooy and was thus a member of a couple pursuant to section 4(2)(b). Mr La’Brooy did not dispute this before the SSAT or before this Tribunal.

10. For the period from 30 July 2013 to 25 June 2014, Mr La’Brooy was legally married and can thus be found to have been a member of a couple pursuant to section 4(2)(a) unless the Tribunal is satisfied that he was living separately and apart from Mrs La’Brooy on a permanent or indefinite basis.

11. There is no evidence before this Tribunal that Mr La’Brooy and his wife were living separately and apart on a permanent or indefinite basis during the Relevant Period.  Mr La’Brooy did not claim otherwise before this Tribunal.

12. In his statement of 28 July 2015 (A1), Mr La’Brooy suggested that his wife recently left him (paragraph 6). This may well be the case and, as correctly noted by the Secretary, if Mr La’Brooy’s circumstances have now changed, he should notify the Department of his changed circumstances as this might assist him financially in the future.

13. In relation to the Relevant Period, however, there was no evidence before this Tribunal to suggest that Mr La’Brooy and his wife were living separately and apart on a permanent or indefinite basis during that period of time.  In that regard, the Secretary highlights in its Written Statement that before the SSAT, Mr La’Brooy did not dispute that he was a member of a couple (T2 at 7) and that his wife was still part of his life.  Further, as outlined by the Secretary, in relation to the financial aspects of the relationship, the Partner Details form completed by Mrs La’Brooy indicates that as a couple, Mr and Mrs La’Brooy had household contents and personal effects valued at 500,000LKR, of which Mrs La’Brooy’s share was 200,000LKR. Mr La’Brooy also informed the SSAT that Mrs La’Brooy is in Sri Lanka on a spouse visa that does not entitle her to work, that he does not know how she supports herself and that, since his pension rate was cut, he can’t afford to pay for her but he does give her “whatever little he has” (T2 at 7).  This evidence was confirmed before this Tribunal. Finally, the Tribunal notes that the address noted on the Partner Details form for Mrs La’Brooy is the same address as the address that Mr La’Brooy has provided to the Tribunal as his mailing address (T7 at 23).

14. While it is arguable from the above that Mr and Mrs La’Brooy’s relationship has recently changed (Mr La’Brooy states, for example, that his wife is now living predominantly with friends and taking less care of him than she did in the past), it is clear on the evidence that during the Relevant Period, in relation to section 4(2) and the section 4(3) factors above, Mr and Mrs La’Brooy were a couple and they were not living separately and apart on a permanent basis throughout the Relevant Period of 9 June 2013 to 25 June 2014.

    SHOULD THE TRIBUNAL EXERCISE THE DISCRETION IN SECTION 24 OR WAIVE THE DEBT ENTIRELY?

15. Mr La’Brooy did not dispute before this Tribunal or the SSAT that he and his wife were a couple during the Relevant Period.  Rather, it appears from the oral evidence before this Tribunal that his main argument in relation to why he should not have to pay back any debt to the Commonwealth and have his pension amount reduced are that:

    a)he was misled by Centrelink in relation to what would happen to his Australian pension if he married overseas; and

    b)his relationship, financial and health situation is such that he should not have his pension reduced, and any debt owing should be waived.

16. In relation to Mr La’Brooy’s assertion that he did not receive any of the letters from Centrelink about the need to advise them of any changes to his relationship status, the Tribunal can, again, only work with the evidence it has before it.

17. In that regard, it is clear from Mr La’Brooy’s own testimony that he had received some correspondence from Centrelink in the past. 

18. The Tribunal does not accept that Mr La’Brooy had not been advised that he needed to let Centrelink know of changes to either his address or his relationship status.  Mr La’Brooy admits to having received mail from Centrelink in the past and there is no reason to believe, on the evidence, that Mr La’Brooy did not receive written notice that indicated that he needed to alert Centrelink of any changes to his address and his relationship status.

19. Nor is the Tribunal able to accept on the evidence before it that Mr La’Brooy was advised orally that his pension rates would not be affected if he married overseas.  There is simply no independent record that this was said to him.  In this context, the Tribunal does not accept Mr La’Brooy’s evidence of the conversation he says occurred and its content.  The Tribunal has rejected Mr La’Brooy’s evidence about not receiving letters from Centrelink and does not accept his evidence in relation to the contents of the conversation as credible.  Mr La’Brooy may genuinely believe that he did not need to advise Centrelink of his marriage (an issue discussed more below in relation to waiver of the debt now owing) but that does not negate the fact that there is no corroborated evidence of the contents of any conversation or of the fact that Mr La’Brooy did not receive written notice advising him of his need to let Centrelink know if his contact and relationship status details changed.  

20. In relation to this issue, the Tribunal notes that if Mr La’Brooy feels misled by any Centrelink employee, he has every right to seek assistance from the Office of the Commonwealth Ombudsman or from senior officials within Centrelink itself. The Tribunal cannot, however, on the evidence before it, assist him in this regard, regardless of how sympathetic it might be to the frustrations this gentleman is clearly experiencing.

21. Putting aside the issue of what was or was not said to Mr La’Brooy about the legal effect of his marriage and the need for him to advise Centrelink of any changes to his relationship status, the Tribunal must determine whether the Social Security Act allows the Tribunal to assist Mr La’Brooy in relationship to a debt now owing to Centrelink.

    Section 24 – treated as not being a member of a couple

22. Section 24 of the Social Security Act allows the Secretary to decide that there is a “special reason” not to treat a person as a member of a couple. This power is discretionary and only applies in limited circumstances.

23. Section 24 reads as follows:

    24Person may be treated as not being a member of a couple (subsection 4(2))

    (1)      Where:

    (a)     a person is legally married to another person; and

    (b)the person is not living separately and apart from the other person on a permanent or indefinite basis; and

    (c)the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;

    the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.

    (2)      Where:

    (a)a person has a relationship with another person, whether of the same sex or a different sex (the partner); and

    (b)the person is not legally married to the partner; and

    (c)the relationship between the person and the partner is a de facto relationship; and

    (d)the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;

    the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.

    (3)A determination made under subsection (1), (1A) or (2) is not a legislative instrument.

24. As outlined by the Secretary in its Statement of 30 September 2015, the effect of exercising the discretion under section 24 is that Mr La’Brooy would be treated as a single person and his rate of pension would be calculated based on the rate for people who are not members of a couple and only his income and assets would be taken into account in determining the rate.

25. As further highlighted by the Secretary, social security legislation is applied by Department officers with the assistance of a policy document referred to as the Guide to Social Security Law (“the Guide”). The Tribunal is not bound to apply the Guide, but would ordinarily take it into account in respect of the exercise of any statutory discretion, and apply the policy unless there are cogent reasons not to do so.  In that regard, the Tribunal was referred to the decision in Re Drake and Minister for Immigration & Ethnic Affairs (No. 2) (1979) 2 ALD 634.

26. In that regard, the Guide (at part 2.2.5.50) provides various examples of the types of situations in which it may be appropriate to exercise the discretion in section 24 of the Social Security Act.

27. The Tribunal notes the following information as outlined in the Guide:

    2.2.5.50 Discretion to Treat a Person as Not Being a Member of a Couple for a Special Reason

    ….

    Explanation

    Case law provides some direction as to the purpose of this legislation. Section 24 discretion exists to deal with unfair, inequitable and/or unjust anomalies.

    Section 24 is intended to be the option of last resort, and should only be applied when all other reasonable means of support have been explored and exhausted.

    When section 24 is applied, the person is deemed NOT to be a member of a couple and is treated as a 'single' person for all purposes of the SSAct. As a result, the person is paid the single rate of payment and only their individual income and assets are included in the assessment of the rate of their payment.

    Note: When the illness separated (2.2.5.60) rate and the partner in gaol (2.2.5.80) rate is applied, the partner's income and assets are included in the assessment of the rate of payment.

    It is not possible to predict all the situations where section 24 should be applied as the circumstances of each particular situation need to be considered on a case-by-case basis.

    Note: When assessing a person's situation, it may be appropriate to consider whether the person's circumstances are such that they should in fact be regarded as living 'separately and apart' from their former partner. If a person is living separately and apart from their former partner on a permanent or indefinite basis they DO NOT meet the definition of a member of a couple and should be determined as single, without recourse to section 24 (refer to 2.2.5.20).

    All circumstances must be taken into account

    The discretion to treat a person as NOT being a member of a couple should be exercised ONLY where a full consideration of all the circumstances relevant to the individual's case would make it unjust or unreasonable not to do so.

    It is appropriate that the decision maker strike a balance between the individual circumstances of the person and the circumstances of the couple. In the case of Boscolo and Secretary, Department of Social Security, the Federal Court found that the decision maker must make the decision with reference to the circumstances of the person seeking the discretion, rather than the position of the couple. HOWEVER, the Federal Court also noted that this does not prevent the decision maker from considering all relevant circumstances, including the position of the couple as it relates to the individual. It is also important to review the partner of the person who has had section 24 applied as part of the process.

    The couple's circumstances should be compared to a couple in similar circumstances but for whom the special circumstances to apply section 24 do not exist. There must be some degree to which circumstances are outside the couple's or individual's control and cannot be changed.

    Explanation: If it is reasonably within the individual or couple's control to improve their circumstances without section 24, generally this should be explored first.

    Three questions that need to be considered as part of the assessment while looking at the full circumstances of the case are:

    Is there a special reason to be considered in this couple's circumstances?

    Is there a lack of being able to pool resources for the couple as a result of the circumstances?

    Is there financial difficulty as a result of the couple's circumstances?

    Is there a special reason to be considered in this couple's circumstances?

    This discretion can ONLY be exercised 'for a special reason in the particular case'. In general, the circumstances must be unusual, uncommon, abnormal or exceptional. It is the context which generally determines whether 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.

    Explanation – residential care: The fact that a person has entered residential care would generally not be regarded as a special reason. Refer to 2.2.5.60 Determining an Illness Separated Couple.

    Explanation – partner in gaol: The fact that a person's partner is in gaol is not regarded as a special reason. Refer to 2.2.5.80 Determining Treatment of Claimant/Recipient with Partner in Gaol – General Provisions.

    Decisions from the AAT and Federal Court indicate that ineligibility for social security, of itself, is very unlikely to constitute 'special reason' for the exercise of section 24. Decisions considering a person's financial difficulty is not, of itself, sufficient to constitute 'special reason'.

    Is there a lack of being able to pool resources for the couple as a result of the circumstances?

    Members of a couple in ordinary circumstances will pool their resources and share their expenses, making it cheaper for them to live than if they were 2 single people. A significant body of case law has established that the inability to pool resources for their mutual benefit is a special reason to exercise the discretion in section 24.

    Generally, section 24 would NOT be appropriate where a couple is able to, but chooses not, to pool resources or where one or both members of a couple choose not to access a source of support which they could contribute to the pool. Consideration should be given to whether either member of the couple has access to any social security or other support that has not been explored or realised. Generally a person would be expected to claim any benefits to which they are entitled.

    Example: One partner is lost at sea and due to the body not being found, the Coroner will not declare the partner dead for 2 years. The surviving partner cannot pool resources and as a consequence may be eligible for the application of section 24.

    Example: Sinead is in receipt of an income support payment and her partner, Hamish, has no financial resources to contribute to the relationship and has no income. Hamish may not be residentially qualified for income support or may be subject to a NARWP. The couple are unable to pool resources as a result of their circumstances. In such cases, and subject to all the usual means and assets tests, section 24 should generally be applied, but should be reviewed regularly to ensure that Sinead's partner has not recently become eligible for a social security payment, e.g. as a result of a 'substantial change in circumstances beyond their control'.

    Example: Simon and Anna are a couple and reside together. Before they were married, Simon was receiving NSA at the single rate and Anna had a job. After their marriage, Simon's rate of NSA was paid at the partnered rate. Anna lost her job and chose not to claim income support despite being eligible as she does not want to have to meet the activity test. Simon and Anna are relying on Simon's partnered NSA and are in hardship. Anna is of working age and is able to meet the activity test by looking for or undertaking work. Simon and Anna's financial situation has come about because they made a personal choice for Anna to remain at home. It is within Simon and Anna's power to improve their financial situation; however, they have chosen not to. Section 24 would generally not be appropriate in this scenario.

    Generally, SSAct section 24 does NOT apply if the couple are living together overseas. The decision maker in assessing couples living together overseas must be satisfied that the information provided is a special situation to warrant the application of section 24. It is important to consider whether the couple can benefit from pooling of resources.

    ….

    Is there financial difficulty as a result of the couple's circumstances?

    Various tribunals and courts described financial difficulty for this purpose as not being able to provide for accommodation and the basic necessities of life or to be without adequate means of support.

    In deciding whether or not to apply the discretion in section 24, the overall financial situation should be considered. Income and readily available funds from assets should be compared to necessary expenditure.

    Income, and readily available funds, from all sources should be taken into account. This includes, but is not limited to, income from employment, income support payments (including FTB, RA etc), investments, insurance and compensation pay-outs, trusts, accessible superannuation, liquid assets, etc. For information on liquid assets refer to SSAct section 14A. Any in-kind support should be considered.

    Necessary expenditure could include, for example, electricity, gas, telephone, rates, rent, groceries, transport and loan repayments.

    Example: Yossarian is in receipt of an income support payment at the partnered rate and his partner, Koko has no financial resources to contribute to the relationship as a result of losing her job, and Koko is not eligible for an income support payment due to being not residentially qualified or being subject to a NARWP. As a consequence the couple are living on a partnered payment that is designed to support half of a couple, with the result that they are in financial difficulty. In these circumstances, and subject to all the usual means and assets tests, section 24 should generally be applied, but should be reviewed regularly to ensure that the income support payment recipient's partner has not recently become eligible for a social security payment.

    There may be circumstances in which factors other than income need to be taken into account in considering whether to apply the discretion. For instance, in some cases a couple may be worse off due to special expenses which have to be taken into account in establishing whether to apply the discretion.

    Explanation: A couple may both be on a payment at the partnered rate, but their expenses have increased due to factors beyond their control. For instance, the compulsory attendance of one member of the couple in a prolonged child custody hearing in another state, whereby they are forced to temporarily maintain separate accommodation. A decision may be made by the delegate to pay both persons the single rate of payment as the resources they have to pool have been diminished and they are disadvantaged when compared to another couple that are not forced to live separately.

    Example: Sara is on NSA and her partner Kate is working part-time while also receiving PPP. Sara has had to live interstate from Kate for an extended period of time in order to attend a trial. This situation has resulted in much higher living costs for both Sara and Kate as they are now required to maintain 2 residences and are not able to obtain the benefit of pooling their resources from their partnership. This situation leaves Sara and Kate at a disadvantage compared to other couples. If section 24 is applied, the case should be manually reviewed every 13 weeks, earlier if warranted, so that when the couple's circumstances change, the need to apply section 24 is re-assessed.

    …

    (original emphasis)

1. Before this Tribunal, the Secretary contended that section 24 should only be exercised if the Tribunal is satisfied that Mr La’Brooy’s circumstances are unusual, uncommon or markedly different from most cases. Having reviewed the various examples provided in the Guide, above, the Tribunal agrees and notes further that the Tribunal can only refer to the evidence before it when making that sort of comparison.

2. As noted, in relation to the scope of section 24 and its relationship to Mr La’Brooy, the Tribunal received supplementary written submissions from the Secretary on 1 March 2016. Those submissions focus to a large extent on the possibility that Mr and Mrs La’Brooy may not be in a position where they can pool their resources, thus triggering section 24:

   1.These submissions are provided following consideration by the respondent of the oral evidence given by the applicant at the hearing on 10 February 2016 and should be read with the respondent’s statement of facts, issues and contentions. The submissions address the possible application of section 24 of the Social Security Act 1991 (Social Security Act).

   2.Having considered the evidence provided by the applicant, the respondent’s primary contention remains that the discretion in section 24 should not be exercised because the applicant’s circumstances are of his own creation. The applicant has chosen to marry, knowing that his wife would be unable to legally work in Sri Lanka. The respondent submits that it is not the intent of section 24 to assist a person in circumstances of their own choosing.

   3.The Guide to Social Security Law (The Guide) at 2.2.5.50 states that generally, the application of section 24 would not be appropriate where a couple is able to, but chooses not to, pool resources. In the present case, it has already been submitted by the respondent that there has been some pooling of resources, with the applicant’s wife contributing money she had saved from caring for the applicant while in the Philippines. In choosing to marry and live in Sri Lanka where Mrs La’Brooy cannot earn any income, the applicant and his wife have chosen not to facilitate the further pooling of resources.

   4.        The respondent also notes the following paragraph from The Guide at 2.2.5.50:

   Generally, SS Act section 24 does not apply if the couple are living together overseas. The decision maker in assessing couples living together overseas must be satisfied that the information provided is a special situation to warrant the application of section 24. It is important to consider whether the couple can benefit from pooling of resources.

   5.However, the applicant also gave evidence that his wife moved to Sri Lanka to care for him. If the Tribunal were to find that Mrs La’Brooy moved to Sri Lanka for the main purpose of caring for the applicant, and that the applicant’s condition was such that it was reasonable and appropriate for Mrs La’Brooy to move to Sri Lanka for the purpose of caring for the applicant, then the Secretary acknowledges that the application of section 24 may be appropriate, notwithstanding that there is an element of personal choice involved in the decision.

   …

   7.It is not clear on the evidence presently before the Tribunal that Mrs La’Brooy moved to Sri Lanka for main purpose of caring for the applicant, nor is there any detailed evidence about the level of care that the applicant required during the relevant period. The respondent acknowledges, however, that these issues were not canvassed at the hearing.

   8.On the basis of the current evidence, the Secretary contends that the SSAT decision should be affirmed. The respondent makes no contentions in relation to whether the applicant should be given a further opportunity to provide evidence, but, given that the respondent has not previously drawn to the attention of the Tribunal or the applicant the potential relevance of this issue, the respondent would not oppose any request by the applicant to file further evidence on the issues addressed in these submissions.

3. In response to these submissions, Mr La’Brooy provided the following written submissions on 9 March 2016:

   I would like you to look at my testimony as i became a victim of circumstance, none of this submissions applies to me as to what Centre Link or International Human Resources States. The main issue is not taken into consideration, so just to cover up their faults they apply what is their evidence.and its mainly based on the evidence provided by Centre link. My question is where are the Inquiries and/or Interviews and/or Conversation and/or Testimonies, I had with the officers of the Centre link were not recorded and thereby not considered in taking the above decision;more PARTICULARLY CONVERSATION WITH MR GABRIEL(I H R) AND CENTRELINK MORLEY.I was totally mislead by providing wrong information to me by the officers of the IHR and Centrelink. stating that i am free to go overseas and even if you get married your pension would not affect,as my marriage is not valid in Australia until i get the said marriage registered in Australia.I have not received any letters from Centrelink,particularly on the 16th April 2015 i was in the office of the Centrelink.I was not asked and/or required to give an overseas address as per their instructions that i do not require to come back to Australia.The supplementary submissions are not related to me,as the information i received before leaving Australia through I H R Mr Gabriel and Centrelink Morley was evidence ,giving me the permission to make my move, so i sold all my Paraphernalia i ever owned. and by no means this circumstance are my own creation.Well i did not have to get married if that was the case.I know that my wife was not likely to find employment because she is not eligible and even if she did it won't be a concern to the Australian government.AS MY MARRIAGE IS NOT RECOGNIZED by taking these facts into consideration.and none of the section 24 are in these circumstances.I humbly request you to consider the above facts and grant me justice as i am presently going through severe hardship as a result of misinformation provided by the Officers of Centrelink and I H R Mr Gabriel. [sic]

4. Contrary to the submission made by the Secretary, the Tribunal does not accept that it is not the intent of section 24 to assist a person in circumstances “of their own choosing”. There are many, often disparate, reasons individuals make the life choices they make and they are often made in extremely emotional and difficult financial and socially complex circumstances. These reasons can and indeed should be assessed in determining whether to exercise the discretionary powers afforded by section 24 of the Social Security Act. Such an assessment goes to the very core of this Tribunal’s adjudicative powers.

5. Unfortunately for Mr La’Brooy, despite being given an opportunity to provide evidence to the Tribunal as to why he and his wife were not, for example, able to pool resources or any other any evidence that might allow the Tribunal to determine whether his situation warranted special treatment under section 24 of the Social Act, no evidence or clear explanation was provided.

6. Further, in oral evidence before this Tribunal, Mr La’Brooy claimed that he is now living in dire financial circumstances, that he is in poor health, that his health care costs are high, that the cost of living in Sri Lanka is high and, as such, he cannot afford the basics.  This may well be the case and the Tribunal does not doubt Mr La’Brooy when he says he is distressed. 

7. Unfortunately, again, there was no evidence before the Tribunal to substantiate these claims. The Tribunal would, for example, have been greatly assisted by a written statement from Mrs La’Brooy about why she and Mr La’Brooy could not pool their resources, her employment situation in Sri Lanka, the extent to which she had day to day care for her husband and whether this is why she moved to Sri Lanka, the couple’s financial situation and day to day costs in Sri Lanka and relevant medical evidence in relation to Mr La’Brooy’s health and his need for care. 

8. None of this was provided, Mr La’Brooy choosing instead to focus on his conversation with Mr Gabriel. The Tribunal simply cannot exercise the discretion it has under section 24 on the basis of an alleged conversation or allegedly misleading information, particularly when there is no concrete evidence that what is alleged to have occurred did actually occur.

9. Unfortunately, there is insufficient evidence before the Tribunal, in relation to section 24, for the Tribunal to find that Mr La’Brooy’s circumstances are markedly different from others. On the evidence, it cannot be said that Mr La’Brooy’s circumstances are unusual, uncommon, abnormal or exceptional. There is no particular quality of unusualness that permits Mr La’Brooy’s situation to be described as special.

10. Having determined that the evidence available in this matter was insufficient to warrant the Tribunal exercising the discretion afforded it under section 24, the Tribunal is left to determine how much debt is owed by Mr La’Brooy to the Commonwealth and whether or not that debt should be waived pursuant to section 1237 of the Social Security Act.

    What is the correct rate of age pension for Mr La’Brooy?

11. The Secretary contended before this Tribunal that Mr La’Brooy was a member of a couple throughout the relevant period, 9 June 2013 to 25 June 2014, and consequently was entitled to the partnered rate of pension. 

12. Mr La’Brooy did not dispute that he was a member of a couple during the Relevant Period.

13. The evidence shows that Mr La’Brooy was initially paid age pension at the single rate throughout the Relevant Period in circumstances where, because he was a member of a couple, he was only entitled to the lower partnered rate of age pension.

14. Accordingly, the Tribunal finds that Mr La’Brooy has been overpaid age pension.   

    Does Mr La’Brooy have a debt to the Commonwealth?

15. As explained by the Secretary, pursuant to section 1223 of the Social Security Act, if a social security payment is made and the person who obtains the benefit of the payment was not entitled for any reason to obtain the benefit, the amount of the payment is a debt due to the Commonwealth.

16. As further highlighted by the Secretary, the debt calculations before the Tribunal (T14 at 41) show that for the period from 9 June 2013 to 24 June 2014, Mr La’Brooy was overpaid age pension in the amount of $5,126.39.  Mr La’Brooy did not dispute that this was the correct amount – simply that he could not and should not have to pay it.

17. On this basis, the Tribunal finds that Mr La’Brooy has a debt to the Commonwealth of $5,126.39.

    Should Mr La’Brooy’s debt be waived or written off?

18. The Social Security Act allows for debts to the Commonwealth to be waived or written off in certain circumstances (Part 5.4 of Chapter 5).

    Waiver of debt due solely to administrative error of the Commonwealth

19. Section 1237A of the Social Security Act provides:

    1237A Waiver of debt arising from error

    Administrative 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.

    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 factors (such as error by the debtor).

    (1A)     Subsection (1) only applies if:

    (a)the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or

    (b)if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;

    whichever is the later.

20. There is no evidence before the Tribunal that Mr La’Brooy’s debt arose solely as a result of an administrative error on the part of the Commonwealth. There is simply no evidence that Mr La’Brooy was advised incorrectly by a Centrelink official that his pension would not be affected if he married overseas and the evidence clearly shows that Mr La’Brooy was sent various letters advising him of his obligation to tell the Department of his relationship status changed. 

    Waiver due to special circumstances

21. Section 1237AAD of the Social Security Act provides that 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.

22. Mr La’Brooy contends that there are special circumstances that warrant waiving the debt.

23. The Social Security Act does not define what is meant by the term “special circumstances” as that term is used in section 1237AAD(b). There is, however, a considerable body of case law to assist the Tribunal in relation to this issue.

24. In that regard, the Tribunal notes the summary of this case law provided by the Secretary in their Statement of Facts as follows:

    ·Beadle and Director-General of Social Security (1984) 6 ALD 1 [p3 paragraph 2] where the Tribunal stated:

    ... 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...

    ·Groth and Secretary Department of Social Security [1995] FCA 1708 where the Federal Court stated at [12]:

    ... The phrase "special circumstances", it has been said, although imprecise is sufficiently understood not to require judicial gloss...it is sufficient to observe that it would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case. That was, I consider, the only enquiry to be undertaken in this case. It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary. The enquiry l have referred to would involve considering what would be the effect, if the provision in question or the principle of liability it creates, is applied...”

    ·Re Ivovic and Director General of Social Services [1981] AATA 57 where the Tribunal stated at [45]:

    ... The reference to special circumstances “by reason of which” a person liable “should be released” requires, in our view, that there must exist in the circumstances of the case, a factor or factors which justify the making of an exception in whole or in part to the principle of liability which the Act otherwise establishes.. .Thus whilst keeping the dominant principle of [recovery of debt] in mind, [the decision maker] must nevertheless be prepared to respond to the special circumstances of any particular case by reason of which strict enforcement of the liability created by the section would be unjust, unreasonable or otherwise...

    ·Angelakos and Secretary Department of Employment and Workplace Relations [2007] FCA 25 where the Federal Court stated at [33]:

    ... 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...

    ·Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114 where Deputy President Forgie stated in part at [80]:

    ...“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 ... 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 Social Security 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 ...

25. The Tribunal has reviewed this case law.  The summary provided by the Secretary is an accurate overview of the current jurisprudence in relation to this issue.

26. Before this Tribunal, Mr La’Brooy highlighted that he would suffer a great deal financially if he were required to pay back the current debt and that he could not work because of poor health.   He added that he was extremely worried about his future if he were required to pay back the money the Department says is now owed as a debt.

27. While the Tribunal is not unsympathetic to the concerns raised by Mr La’Brooy, unfortunately, there was no evidence before the Tribunal in relation to Mr La’Brooy’s current financial or health situation or any other situation that might be deemed special.  Mr La’Brooy was given an opportunity to provide that evidence but none was forthcoming.

28. The Tribunal accepts that a debt of this size would have an impact on Mr La’Brooy’s lifestyle but, based on the evidence available to it at the date of hearing, the Tribunal finds that the circumstances he now finds himself in are not uncommon to many who receive social assistance

29. Mr La’Brooy advised the SSAT that he would not have married his wife if he had known it would affect his rate of pension and that he only did so because he was told that an overseas marriage had no effect on pensions paid in Australia.  As correctly highlighted by the Secretary, it is arguable that incorrect advice from Centrelink might constitute a special circumstance of the sort that would warrant waiver of a debt: Written Statement, referencing Re Gale and Secretary, Department of Employment, Education and Training [1996] AATA 619; Secretary, Department of Social Security and McAvoy [1996] AATA 331; Re Webb and Secretary, Department of Social Security [1998] AATA 155.

30. Unfortunately, there is simply no evidence before this Tribunal that incorrect advice of the sort suggested by Mr La’Brooy was provided.  Without that evidence, the Tribunal cannot assist Mr La’Brooy in relation to this issue.  The evidence that does exist shows that Mr La’Brooy was advised numerous times in writing of his obligation to advise Centrelink of any change to his relationship status.

31. Taking into account all of the information before the Tribunal, the Tribunal is not satisfied that there are “special circumstances” that warrant Mr La’Brooy’s debt being waived.

    Write off

32. Section 1236 of the Social Security Act provides that the Secretary (and the Tribunal standing in its shoes) may, on behalf of the Commonwealth, write off a debt if one or more of the following applies

    (a) the debt is irrecoverable at law; (b) the debtor has no capacity to repay the debt; (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.

1. On the evidence available to it, the only issue here is whether Mr La’Brooy has capacity to repay the debt. 

2. Despite being given an opportunity to provide further details of his financial situation, no further information was provided by Mr La’Brooy. On the evidence before it, the Tribunal is not able to find that any 1236 (b) or any of the the other circumstances referred to in section 1236 apply in relation to Mr La’Brooy.

   FINDINGS

3. Mr La’Brooy was a member of a couple for the purposes of the Social Security Act1991 during the period 9 June 2013 to 25 June 2014.

4. The correct decision was made to reduce the rate of Mr La’Brooy’s age pension to the partnered rate.

5. Mr La’Brooy was overpaid age pension

6. This overpayment, totalling $5,126.39, is a debt to the Commonwealth.

7. There is insufficient evidence upon which to exercise the discretion offered in section 24 of the Social Security Act.

8. There is insufficient evidence upon which to justify waiving the debt or writing it off as per section 1236 and 1237 of the Social Security Act.

   DECISION

9. For the reasons outlined above, the decision under review is affirmed.

102.    I certify that the preceding 101 (one hundred and one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall.

...........................[sgd D Brodie]............................

Administrative Assistant

Dated 18 March 2016

Dates of hearing	10 February 2016
Date final submission received	8 March 2016
Applicant	In person (unrepresented)
Representative of the Respondent	Ms A Ladhams
Solicitors for the Respondent	Australian Government Solicitor