Murray; Secretary, Department of Social Services and (Social services second review) - [2021] AATA 2100

Murray; Secretary, Department of Social Services and (Social services second review) [2021] AATA 2100 (17 May 2021)
Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2020/4561, 2020/4860

GENERAL DIVISION )
Re: Secretary, Department of Social Services
Applicant

And: Patrick Murray
Respondent
DIRECTION
TRIBUNAL:  Ms A E Burke AO, Member
DATE OF CORRIGENDUM:            23 July 2021
PLACE:           Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application.

In paragraph 81 the date of ‘3 January 2018’ should be changed to ‘5 January 2018’.

In paragraphs 88, 89 and the preceding heading, and paragraph 96, the date of ‘7 December 2018’ should be changed to ‘19 November 2018’.

In paragraphs 97 and the preceding heading, and in paragraph 122, the date ‘8 December 2018’ should be replaced with ‘20 November 2018’.

In paragraphs 102 and 112, the date should be changed from ’20 November 2019’ to ’20 November 2018’.

In paragraph 139, at sub-paragraph five, the date period should be changed from ’19 November 2019 to 20 August 2019’ to ’20 November 2018 to 20 August 2019’.

..............................[sgd]...............................
Member
Division:GENERAL DIVISION
File Numbers: 2020/4561 and 2020/4860
Re:Secretary, Department of Social Services
APPLICANT

AndMr Patrick Murray
RESPONDENT

DECISION
Tribunal:Ms A E Burke AO, Member
Date:17 May 2021
Date of written reasons: 5 July 2021
Place:Melbourne

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal finds that the Respondent had a debt to the Commonwealth for the period 5 January 2018 to 20 August 2019 as he had been overpaid carer payment as his assets exceeded the asset value limit for non-homeowners.
The Tribunal determined that Mr Murray’s carer payment had been correctly cancelled on 5 January 2018 as his assets exceed the asset value limit for non-homeowners.
The Tribunal determines to waive the debt for the period 11 December 2017 to 20 December 2017 because of special circumstances.
The Tribunal determines to waive the debt for the period 5 January 2018 to 19 November 2018 because of sole administrative error.
The Tribunal determined that the remainder of the debt to 20 August 2019 be waived because of sole administrative error.
The Tribunal sets aside the decisions under review and in substitution decides in accordance with the above findings and determinations.
..........[sgd]..............................................................
Ms A E Burke AO, Member
Catchwords
SOCIAL SECURITY –– oral decision/reserved decision combined – overpayment of carers allowance as combined assets exceed allowable limit – declared inheritance of property and cash not actioned by Centrelink – whether carer payment correctly cancelled – whether debt due to the Commonwealth – whether property was principal place of residence – whether considered a non-home owner – whether recovery of all or part of the debt should be written off or waived – debt in part attributable solely to error made by Centrelink – applicant did not knowingly make false statements or claims – applicant accepted payment in good faith – whether valid notice was issued by Centrelink – whether special circumstances exist to waiver recovery of all or part of the debt – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Re Anderson and Secretary, Department of Families and Community Services (2002] 69 ALD 494
Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435
Groth and Secretary, Department of Social Security (1995) 40 ALD 541
Ryde v Secretary, Department of Family and Community Services [2005] FCA 866
Gazal and Secretary, Department of Family and Community Services [2004] AATA 1106; (2004) 85 ALD 730
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Freeman v Secretary, Department of Social Services [1988] FCA 294; 19 FCR 342
Phelan and Secretary, Department of Social Services (Social services second review) [2019] AATA 554
Secondary Materials
Guide to Social Security Law, Department of Social Services
REASONS FOR DECISION
Ms A E Burke AO, Member
5 July 2021

The Secretary of the Department of Social Services (the Applicant) is seeking a second-tier review of the decision made by the Social Services and Child Support Division of the Tribunal (AAT1) on 24 June 2020 and 24 July 2020 that Mr Patrick Murray’s (the Respondent) carer payment should not be cancelled from 3 January 2018 and his carer payment debt of $40,004.01 for the period 3 January 2018 to 20 August 2019 should be recalculated excluding Mr Murray’s Seaford property.
The application was heard by telephone on 17 May 2021. Ms Aarabi Raveendiran, a government lawyer in the Legal Services Division of Services Australia, appeared for the applicant and Mr Murray was self-represented.
The Tribunal provided an on oral decision at the hearing, that the debt for the period 11 December 2017 to 20 December 2017 should be waived because of special circumstances; and that the debt for the period 5 January 2018 to 19 November 2018 should be waived because of sole administrative error, the Tribunal otherwise reserved the decision in respect of the matter. Mr Murray subsequently requested written reasons for the decision in accordance with section 43(2A) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). These are those reasons, including the reserved decision.
BACKGROUND
Mr Murray is a 50-year-old, who for the past 24 years has been his mother’s full-time carer. Mr Murray has been receiving carers payment since May 1996. Mr Murray resides with his mother at her property. In December 2017 Mr Murray inherited a property worth approximately $650,000 and $158,332.66 in cash.
On 28 August 2019 Centrelink made a decision to cancel Mr Murray’s carer payment as his assets exceeded the allowable asset limit for carer payment.
On 28 January 2020, on internal review, a departmental Authorised Review Officer (ARO) affirmed the original decision. The ARO noted:
You requested a review because you provided all legal documents and you were advised that the department would review everything and determine the payment. It was not until 30 August 2019, when your Carer Payment was cancelled due to your assets being above the allowable limit. You did not realise that you could use the inherited house as your principal residence and still get the Carer Payment as no one advised you of this option.
The ARO found:
As at 20 December 2017, the asset limit that applies to a single person who does not own the home they are living in was $456,750. Assets above this figure reduces a person’s entitlement to Carer Payment. Carer Payment is not payable once combined assets exceed $755,000.00.
Therefore as at 20 December 2017, your assets of $808,332.56 exceed the allowable asset limit of $755,000.00 which means you were not entitled to Care Payment from 20 December 2017 due to exceeding the asset limit.
I note that on 28 August 2019, your Carer Payment was cancelled from 28 December 2017 being the day you notified the department of the change in circumstance. As you were a notification reporter, you had 14 days to advise the department of any changes to your circumstance. Your record shows that you notified the department on 28 December 2017 which was within 14 days of the change in your circumstance which was 20 December 2017.
As the change in circumstances occurred on 20 December 2017 and you advised the department on 28 December 2017, which was not acted upon onto 28 August 2019, there are provisions with Social Security Law relating to cancellation of payments when a person notifies the department of the change in circumstance.
In your case, as the information relating to the inheritance of the property was not acted upon by the department until 28 August 2019, your Carer Payment is payable to you until the end of the notification period and is then cancelled. As the change in circumstances occurred on 20 December 2017 and the end of the notification period was 2 January 2018, your Carer Payment is to be cancelled from 3 January 2018 not 28 December 2017 as per the original decision.
On 24 June 2020, AAT1 set aside the decision of the ARO, finding that Mr Murray’s carer’s payment should not have been cancelled and that carer payment remained payable. The Member found:
During the hearing Mr Murray told the tribunal that once he had inherited the Seaford property he intended it to be his principal home and indicated as such on the MOD R form that he submitted to Centrelink on 4 January 2018. However, he said that, after a few nights staying overnight at the Seaford Property he was unable to continue living there and had to move back to live with his mother in Moorabbin because she required continuous and ongoing care for 24 hours each day. He explained that his mother didn’t want to leave her home and that the Seaford property was unsuitable for her given her medical conditions. Mr Murray told the tribunal that while he was living at the Seaford property his mother, who had been living in Moorabbin by herself, had accidently caused a fire in the kitchen and this is when he realised that it was untenable for his mother to live by herself without 24/7 care.
Mr Murray advised that he moved back to Moorabbin to live with his mother so that he could provide full-time care for her every day. He explained that she had multiple complex medical conditions and disabilities, including a brain tumour which had caused her to be unstable and dizzy, loss of memory and loss of feeling in her left arm and foot. She also had hearing loss, poor eyesight due to cataracts and bladder cancer which caused severe incontinence. Mr Murray confirmed that from January 2018 to 28 August 2019 he was required to live at Moorabbin so that he could provide continuous and ongoing care to his mother, including assistance with medication, meals, toileting, dressing, housework, getting in and out of bed, all other movement around the house and attendance at medical and other appointments.
Section 11A of the Act defines a principal home for the purpose of the assets test. In normal circumstances, Mr Murray would have to be living in the Seaford property for it to be considered his principal home. However, paragraph 11(9)(f) of the Act provides that a residence of a person is to be taken to continue to be their principal home during any period of up to two years while they are absent from the residence and are personally providing a substantial level of care in another private residence for another person who needs, or is likely to need, that level of care in a private residence for at least 14 consecutive days.
In this case the tribunal finds that from January 2018 to 28 August 2019 Mr Murray was providing a substantial level of care for his mother in his mother’s house at Moorabbin and his mother needed that level of care in her home (which was a private residence) for at least 14 consecutive days.
Therefore, the tribunal determines that for the period January 2018 to 28 August 2019 the Seaford property was Mr Murray’s principal home and is therefore to be excluded from the assets test, pursuant to section 1118 of the Act.
On this basis, the tribunal also determines that Mr Murray was a homeowner from January 2018 to August 2019, that his total assets were under the homeowner allowable assets value limit for receipt of carer payment and that carer payment was payable to him in the period January 2018 to 28 August 2019.
Therefore, the tribunal is satisfied that carer payment remained payable to Mr Murray from 3 January 2018 and his carer payment should not have been cancelled.
On 28 July 2020, the Secretary, Department of Social Services sought a review of the AAT1 decision of 24 June 2020 by this division of the Tribunal, as she disagreed with the decisions made, stating:
The AAT1 erred in setting aside the cancellation of Mr Murray’s carer payment on the basis that the value of the property at 3 Mitchell Street Seaford was disregarded pursuant to sections 11A(9)(f) and 1118(1)(a) of the Social Security Act 1991.
On 6 February 2020, a Centrelink officer made a decision to raise and recover a carer payment debt of $40,004.01 for the period 3 January 2018 to 20 August 2019, as Mr Murray had been paid carer payment that he was not entitled to.
On 27 February 2020, on internal review, a departmental Authorised Review Officer (ARO) affirmed the original decision. The ARO found:
From 3 January 2018 to 20 August 2019 you received Carer Payment totalling $40,004.01.
Based on your actual circumstances, you were entitled to receive $0.00. This means you have a debt of $40,004.01.
I have considered the rules that allow the recovery of a debt to be waived.
A debt must be waived if it was caused solely by an error by the agency, the debt was not raised within 6 weeks of the incorrect payment and the overpaid amount was received by the person in good faith. If a person knew or had reason to know that they were not entitled to a payment they have received, they cannot be said to have received the payment in good faith.
You have a debt because the inherited property at 3 Mitchell Street, Seaford, VIC 3198 worth $650,0000.00 was not considered in the payments made to you during the period of the debt. As a consequence, you received Carer Payment to which you were not entitled.
I acknowledge the agency’s error in not updating your record correctly and in a timely manner although all the information had been provided within the 14 day notification period. This has been accepted as an administrative error. However, following this change in the level of your assets, it would be reasonable for you to expect a change in the rate of your Carer Payment. I note that there was only a $1.12 reduction in the rate of your Carer Payment. You did not contact the agency or seek an explanation.
During our conversation on 27 February 2020, you informed me that you had done the right thing by notifying the agency of the change in your circumstances. You relied on the expertise of the officers in the agency. It is not your fault that the agency failed to update your record and therefore, you should not be expected to repay the money. You want the entire debt to be waived. I have taken into consideration your assertions and the contents of your letter dated 18 February 2020. However, I am not satisfied that you received the payments in good faith. As the incorrect payments were not received in good faith, the debt amount cannot be waived for this reason.
A debt may also be waived if there are special circumstances that make it desirable to waive. Circumstances need to be sufficiently unusual or uncommon to be considered special. The circumstances in which the debt has arisen are not uncommon or unusual and there is nothing in the evidence before me to suggest that recovery would be unfair or unjust.
I am not satisfied there are special circumstances that make waiving the debt desirable…
On 24 July 2020 AAT1 set aside the decision of the ARO, finding that Mr Murray’s carer payment debt of $40,004.01 for the period 3 January 2018 to 30 June 2018, should be waived and Mr Murray had no debt for the period 1 July 2018 to 20 August 2019. The Member found:
This tribunal accepts the findings of the earlier tribunal in relation to the Seaford property.
As the Seaford property was Mr Murray’s principal home it is excluded from the assets test, which means his overall assets, as at January 2018 were $159,367 ($809,367 less $650,000) which included financial assets of $159,367. The income thresholds in relation to the income test were as follows: from 1 July 2017 – $4,368, from 1 July 2018 – $4,472 and from 1 July 2019 – $4,524. Applying the deeming rates …to Mr Murray’s financial assets, results in Mr Murray’s deemed income being $58 per annum above the threshold for the year ending 1 July 2018. This would have a negligible effect on the rate of Mr Murray’s pension.
Based on his deemed income from his financial assets of $159,367, is below the annual income threshold, from 1 July 2018. Mr Murray was therefore entitled to ongoing carer payment for the period 1 July 2018 to 20 August 2019 and he did not incur a debt of carer payment in this period.
However, Mr Murray’s annual deemed income for the period 3 January 2018 to 30 June 2018, was above the threshold, albeit by a relatively small amount (being the annualised amount of $58 as shown in the table at paragraph 22 above). The excess deemed income for the period 3 January 2018 to 30 June 2018 will therefore result in a negligible overpayment for the period 3 January 2018 to 30 June 2018. This overpayment is to be calculated by Centrelink based on Mr Murray’s deemed annual income, calculated on his financial assets being $159,367 as at 3 January 2018.
In this case, the tribunal was satisfied that a negligible excess payment of carer payment arises for the period 3 January 2018 to 30 June 2018 and is to be calculated by Centrelink on the basis that Mr Murray’s deemed annual income based on his financial assets being $159,367. The tribunal accepts this excess amount of carer payment paid to Mr Murray, albeit negligible, for the period 3 January 2018 to 30 June 2018, is a debt due to the Commonwealth.
The tribunal accepts in this case that Mr Murray provided information to Centrelink in January 2018 in relation to his recent inheritance, including information about the Seaford property and funds he had inherited. Centrelink did not act on this information to reassess Mr Murray’s entitlement to carer payment. It was Mr Murray’s belief that Centrelink had acted on the information he had provided and he was paid carer payment accordingly. The tribunal finds the debt attributable to the period 3 January 2018 to 30 June 2018, as calculated according to the tribunal’s direction, was due to Centrelink error and Mr Murray received the payments in good faith. Accordingly, the debt attributable to this period must be waived under section 1237A of the Act.
On 11 August 2020 the Secretary, Department of Social Services sought a review of the AAT1 decision of 24 July 2020 by this division of the Tribunal, as she disagreed with the decisions made, stating:
The AAT1 erred in setting aside and substituting a decision that Mr Murray’s did not have a carer payment debt from 1 July 2018 to 20 August 2019. Please note that this application is related to another application from the Secretary regarding cancellation of carer payment…
ISSUES IN CONTENTION
The Tribunal needs to consider the following relevant issues:
(a)whether Mr Murray’s carer payment was correctly cancelled from 3 January 2018;
(b)whether Mr Murray was overpaid carer payment for the periods 11 December 2017 to 20 December 2017 and 3 January 2018 to 20 August 2019;
(c)if so, is the debt recoverable; and if yes,
(d)should the debt be waived due to administrative error pursuant to section 1237A of the Social Security Act 1991 (the Act); or
(e)whether special circumstances exist, such that the debt should be waived pursuant to section 1237AAD of the Act.
RELEVANT LEGISLATION AND ISSUES
Carer payment (CP) is paid to a person who provides constant care or care and attention on a daily basis, for a child or an adult with a disability or severe medical condition. As with all social security payments in the Australian income support system, it is designed to be a safety net for people unable to support themselves without calling on the resources of the community. The income and assets tests are applied to the system so that it remains sustainable and affordable for Australian taxpayers. The tests help ensure that the funds available for social security expenditure are directed to those most in need in the community.

According to the Social Security Guide (the Guide), the care receiver (CA) is an adult or a child who has a disability and has been assessed as meeting the following requirements:
Adult:
has a disability that requires care and attention on a daily basis, AND
has been assessed and rated against the ADAT and given a score of 30 or more, with at least 12 points being attributable to the professional questionnaire component, AND
is aged 16 years or more, AND
is an Australian resident…
Section 210 of the Act provides that a person's carer payment rate is worked out using the Pension Rate Calculator A at the end of section 1064. Step 9 of the Pension Rate Calculator A notes: Apply the assets test using MODULE G below to work out the reduction for assets.
As at 11 December 2017, using Module G, the assets value limit for a homeowner to receive a full rate of carer payment was $253,750.00. For every $1,000 in assets above this amount, the rate of carer payment reduced by $3.00 per fortnight, until reaching a cut-off amount of $456,750.00. Similarly, the assets value limit for a non-homeowner to receive a full rate of carer payment was $552,000. For every $1,000 in assets above this amount, the rate of carer payment reduced by $3.00 per fortnight, until reaching a cut-off amount of $755,000.
Section 1118(1)(a) of the Act states certain assets are to be disregarded in calculating the value of a person's assets:
(1) In calculating the value of a person's assets for the purposes of this Act (other than sections 198F to 198MA (inclusive), Division 1B of Part 3.10, Division 2 and sections 1133 and 1135A), disregard the following:
(a) if the person is not a member of a couple--the value of any right or interest of the person in the person's principal home that is a right or interest that gives the person reasonable security of tenure in the home;
Section 11A of the Act provides a definition of principal home for the purpose of the assets test:
(1) A reference in this Act to the principal home of a person includes a reference to:
(a) if the principal home is a dwelling-house…
Section 11(4) of the Act defines a homeowner:
(4) For the purposes of this Act:
(a) a person who is not a member of a couple is a homeowner if:
(i) the person has a right or interest in the person's principal home; and
(ii) the person's right or interest in the home gives the person reasonable security of tenure in the home; …
Section 11A(9)(f) of the Act outlines when a person’s residence is to be taken to continue to be the person's principal home during:
any period of up to 2 years while the person is absent from the residence and is personally providing a substantial level of care in another private residence for another person who needs, or in the Secretary's opinion is likely to need, that level of care in a private residence for at least 14 consecutive days.
Section 68(2)(a) of the Social Security (Administration) Act 1999 (the Administration Act) empowers the Secretary to give a notice to a person to whom a social security payment (such as carer payment) is being paid, requiring that person to inform Centrelink if a specified event or change of circumstances occurs or is likely to occur.
Section 72 of the Administration Act requires the notice be given in writing, personally, or by post, or in any other manner approved by the Secretary. It also specifies how the information is to be given by the person to the Department; and specifies when the information is to be given.
Section 72(3)(b) of the Administration Act provides that a person must give the information required to be given under the section 68 notice within 14 days after the day on which the event or change of circumstances occurs; or the day on which the person becomes aware that the event or change of circumstances is likely to occur.
Section 1223 of the Act outlines how debts arise from a lack of qualification, overpayment, or other such circumstances:
(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.
Section 1237A(1) of the Act provides grounds for the decision-maker to waive recovery of any part of the debt. The Act provides that the decision-maker must waive a debt if it was attributable solely to an administrative error made by the Commonwealth and the debtor received the payments in good faith.
Section 1236 of the Act allows the decision-maker to write off a debt 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.
Section 1237AAD of the Act allows the decision-maker to waive all or part of the debt if they are 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’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided by the Applicant pursuant to section 37 of the AAT Act, referred to as the “T documents”. Mr Murray provided several statements and gave oral evidence at the hearing of this matter.
Mr Murray provided a statement dated 18 February 2020 to Centrelink in support of his appeal to have his debt of $40,004.01 waived, stating:
I find it insulting that I am being treated as a person who has deceived the Department. If I was intending to deceive the Department I would have let the Executrix hold onto the Estate for 12 months until 21 December 2018 which by law she was entitled to do during which time the Department would have been paying me, I would not have been burden with the cost of paying land tax or deprive myself of health care or concessions.
At the end of the day all that has transpired since December 2017 has been caused by the Department’s Administrative errors which have incurred me in financial costs and deprived me of health care. My mother’s (76 years old) condition (permanent since 1996) has not changed but worsened.
Mr Murray provided a statement dated 2 June 2020 for his AAT1 hearing, in which he details his interaction with Centrelink following his inheritance of cash and property in Seaford, stating:
My name is Patrick Murray. Whilst continuing to perform my Carer duties for 24 years I have received no payment whatsoever since the 22 August 2019 and am now faced with a $40,000 debt because of Centrelink's unlawful actions and failure of duty of care.
The ARO in his decision on the 28 January 2020 finds the decision of the 28 August 2019 to backdate and cancel my Carer payment and Concession Card during the reporting period is wrong. In an attempt to make those decisions lawful he changes the reporting period dates incorrectly and in so doing he commits the same offence as the original decision maker and the Secretary. He disregards the start date of the reporting period being 22 December 2017, recorded and put on the system by Centrelink staff thereby invalidating his own decision.
The ARO in his listed evidence withholds the documented evidence that conflicts with his findings. He fails to disclose my contact with Centrelink on the 22 December 2017, my visit to Centrelink offices on the 4 January 2018 when I provided all original documents from the solicitor. He also states the Department did not act on my information until the 28 August 2019. Centrelink's financial statement of the 4 January 2018 shows the Department did act, they changed my rate of maximum carer payment from yes to no and reduced my next payment, all in the reporting period. He makes no reference to my Appeal of the 2 September 2019 or my Concession Card which granted me statutory rights and protection under the Act.
Under the Act I completed my statutory obligations and advised the Department not once but five times during the reporting period about the inheritance of a house and one off exempt lump sum, providing all documentation, emails, Certificate of Title and Will from the solicitors. Also during the reporting period as requested by the Centrelink Officer, I completed the Module R Form about the house and signed an Authority to inspect and value the house so that the Department could ensure I received the correct payment. This was never acted upon by the Department.
FOI information shows that the day before the ARO first contacts me he is instructed to affirm the decision of the 28 August 2019 even though he had found that decision to be wrong and wanted to resume my payment from the 22 August 2019. An admission that an error had occurred.
At all times the Department were aware that my circumstances had changed on the 22 December 2017. They knew about the house and money and were in control at all times. They had exclusive power to determine what payment I should receive. By failing in their duty of care in 2017 they caused a debt of $40,000 to be raised two years and two months after I had completed all my statutory obligations as I was required to do, not once but five times during the reporting period.
Two ARO Officers have found the decision of the 28 August 2019 to be wrong but I am the only one suffering from this decision.
My Mother's extensive medical grounds on which I was granted the Carer payment in 1996 has not changed or improved and I am the only person who can care for her, she has no-one else. This was never taken into account by the FIS Officer.
TIME LINE
28 August 2019
In 2020 I would find out from FOI that an unidentified individual who had obviously accessed my personal and confidential information, contacted FIS Queensland regarding a Specialist Officer contact for Carer payment. After that contact on the same day without any discussion or request for me to attend for an interview, my Carer payment and Concession Card were both cancelled and backdated to December 2017 unlawfully during the reporting period. I find it disturbing that Centrelink staff would discuss my financial affairs with a stranger rather than speak to me before action was taken. Action which has exposed Centrelink's numerous administrative errors and failure of duty of care in 2017, 2019 and 2020.
It is noted from FOI information that after contact with this unknown person the matter should not be referred back to FIS. Over the next five months during my Appeal, my Certificate of Title, solicitor's documentation and all my financial statements were deleted from My/Gov Apps, my Appeal of the 2 September 2019 was held back for 5 months instead of the 28 day turn round, documents were not to be scanned to my file, a debt recovery was being investigated which was not to be discussed with me, my complaints and visit to Centrelink offices were ignored until the Ombudsman became involved.
This unknown individual's intent to cause me harm has been very successful.
The stigma of being cancelled by FIS, a debt investigation and the accusation that I have acted in bad faith when I did everything i was required to do not once, but five times during the reporting period will unjustly stay with me for the rest of my life.
As a result of this person's contact with FIS and Centrelink's numerous errors I have lost $20,000 in Carer payments, concessions, health care and coronavirus payments, even though I have and still am carrying out my Carer duties without any income. I am now also faced with a $40,000 debt with daily compound interest. No words could ever express the emotional distress that has been caused to myself and my family.
30 August 2019
I received an email saying I had a new message in my Gov/App inbox. I then saw the letter of the 28 August 2019 informing me my Concession Card was no longer valid after 27 December 2017 and I was no longer eligible for Carer payment. I now find out from FOI documentation this decision resulted from a phone call to FIS Queensland (targeted focus initiative) which I knew nothing about. It was not until January 2020 that I would find out this decision was unlawful, cutting me off during the reporting period and wrongfully involving me in a $40,000 debt.
During the following period whilst I was under review all my documents and evidence supplied during the reporting period start date 22 December 2017 was deleted along with all my financial income statements from My/Gov App and Express Plus Centrelink App.
2 September 2019
I attended Centrelink offices and appealed this decision and was informed it had to be in my words. When the Officer informed me I owed money I asked for a copy of my appeal which both he and the Manager refused to give me. They both then started to pressurise me to reapply for the Carer Payment. I told them to do so would be an admission that I had done something wrong. I reiterated that I had provided all the documents when my circumstances had changed. {In the year 2020 I would find out it was their wording and not my own, omitting all reference to the concession card and one off exempt lump sum and how they copied all documents in December 2017).
On their advice I made the house my principal residence and changed all my details which is the advice I should have received in 2017 and would not have been paying land tax and receiving no concessions.
15 October 2019
Attended Centrelink offices to enquire progress of appeal. Officer sent off enquiry saying I was receiving no income. I was told someone would contact me shortly.
14 November 2019
Sent complaint – No income, my concession card, why I am not being paid until my review is determined.
9 December 2019
After no response to my visit of the 15 October and no response to my complaint of the 14 November I lodged a further complaint as I was still not receiving any income.
2 January 2020
No action was taken on my Appeal of the 2 September 2019 until this date.
7 January 2020
After being continually ignored I lodged a complaint with the Commonwealth Ombudsman that Centrelink were exercising their power to prevent me from obtaining due process by not completing a review within 28 days and not even appointing an ARO. It was only after his intervention the Department finally communicated with me on the 22 January 2020.
21 January 2020
' Before initial contact the ARO sought advice from the Helpdesk asking to resume my payment from the 22 August 2019. He found the decision incorrect. He was overruled. He also mentioned a potential debt was being investigated.
22 January 2020
ARO contacted me by phone advising he had been appointed to review the decision made on the 28 August 2019 which he found was incorrect. The ARO verbalises what I had said in his evidence leaving out details of what I had actually said. He reports that after my circumstances changed on the 22 December 20171 told him a family member had moved in, which I never said. The true facts are a family member was living in the property from April 2016 under a VCAT Administration Order at the Hearing before Member P Barrand on the 8 April 2016 VCAT Ref 68536 with the owner's permission, and was paying all the bills until the VCAT order ceased, at which time the Executrix took control until 4.28 pm on the 21 December 2017 when the Estate was finalised. This can easily by confirmed by Centrelink's own records.
The ARO told me to apply for both the Carer Payment and Carer allowance at the same time. I said there was no need for me to apply. Under the Act I automatically qualified for Carer allowance. Why would an ordinary person trust the advice of the Department that had deleted my evidence and left me without any income for 5 months during the review period, illegally cutting me off during the reporting period and breaching the Act by cancelling my Concession Card, which gave me the protection of being transferred to another payment and would ensure that I would never receive a $40,000 debt with daily compound interest.
Also left out of his evidence was the conversation about my Appeal of the 2 September 2019, my Concession Card, that I would not have been paying land tax for 2 years and denying myself concessions if I had been trying to deceive the Department. I told him you have the power to correct this today. I wasn't aware a decision had already been made the day before he contacted me.
28 January 2020
The ARO finds the decision on the 28 August 2019 to be incorrect and changes the reporting period dates incorrectly, failing to take note that the reporting period start date was the 22 December 2017 as confirmed by the Centrelink Officer on that day and also on the 4 January 2018 when I visited Centrelink Offices, taking in all documents I received from the solicitor, even the Will. The Officer copied all documents and uploaded them to the system and gave me the module R form to complete within 14 days which I completed that day giving my authorisation to enter the property. As stated on the front two pages which have not been provided to the Tribunal, an accurate valuation will ensure I receive the correct entitlement. The Department received this form on the 9 January 2018.
30 January 2020
Despite changing all my details on the 2 September 2019, the house being no longer an asset I received an oppressive letter from the Department, stating I had assets of $809,347.00 an increase of over $1,000 still counting the house, disregarding all my details of the 2.9.2019 and the fact that I have been draining my bank account for 6 months in order to survive, whilst still carrying out my carer responsibilities for my 76 yr old Mother.
This letter not only preventing me from getting any payment whatsoever for a minimum of 13 weeks if I were to apply but also will ensure that the Commonwealth would unjustly enrich themselves by charging daily compound interest as I am not receiving any payment whatsoever. The only payment I could expect to receive under this letter would be the carers allowance which I automatically qualified for with my concession card in December 2017, which card was unlawfully cancelled during the reporting period by the Secretary.
3 February 2020
2 years and 2 months after advising the Department 5 times of my change of circumstances and with no notification whatsoever I received a signed Debt Demand notice from A Brockley, Manager, Delegate of the Chief Executive Officer stating – "The amount owing is made up of:
Carer payment for the period 03 JAN 2018 to 25 JUN 2019 of $40004.01".
After subtracting the payments actually paid into my bank account for this period the Computer unlawfully takes thousands of dollars to arrive at $40004.01. After informing the Department this was an error several weeks later, I received the same dated Demand without a signature.
I then would receive a computer spreadsheet hiding appropriations and another computer sheet both with different figures taking thousands of dollars the Commonwealth was not entitled to.
18 February 2020
I applied for a waiver of this debt which was denied.
DETAILS OF MY COMPLIANCE WITH CENTRELINK RULES
22 December 2017 Start date of the reporting period
The day after my circumstances changed I contacted Centrelink advising them I had inherited a house and lump sum. The Officer noted the start date being 22 December 2017 and gave me an App to upload my documents. I logged on and tried to upload my documents which the App refused to do. I continually kept trying to upload my documents without success during the five days they were shut. CENTRELINK NOW CLOSED UNTIL 28 December 2017.
28 December 2017
I contacted Centrelink and told them I was having trouble with the App. They gave me a new App. I logged on and completed the questionnaire as to how my circumstances had changed and at approximately 10 am I successfully sent the Executrix's emails.
4 January 2018
I attended Centrelink Offices and took all original solicitor's letters provided to the Supreme Court, Certificate of Title and the Will which the Officer copied along with the details of my Bank Accounts, affirming the start date of the reporting period was the 22 December 2017 and gave me a Module R Form for completion within 14 days, which I completed and sent off during the reporting period. On this Form I signed an Authority for a valuer to attend the property, for as stated on the first two pages of the form which the Department have not sent to the Tribunal, they need a correct valuation to make sure I receive the correct payment. The Department chose not to send a valuer even though I had told them the property was in very poor condition. The estimate was purely an estimate and nothing more.
Centrelink were aware of the inheritance of both the house and one off lump sum on 22 December 2017, 28 December 2017, 4 January 2018, 9 January 2018.
Also on this day still in the reporting period Centrelink issued a financial statement to My/Gov App stating that I was no longer on maximum Carer Payment and reduced my next payment, noting my exempt lump sum as $163,332 proving that they had read the solicitor's letters detailing the house and payment. $5,000 was subtracted from the lump sum which was paid to the Executrix to settle debts before completion of the Estate. This financial statement was deleted from my Gov/apps along with all other statements during the appeal process. However I managed to find this on my old phone recently.
The reason why the law firm was going through my email to communicate with the Executrix was because I had to relay all information to her due to her loss of hearing, brought about by a brain tumour operation (permanent). She also has poor vision as a result of another brain tumour, stroke and brain aneurysm. The Executrix also does not have an email or internet banking.
(References to Exhibit’s omitted)

A Victorian Certificate of Title shows Mr Murray as the sole proprietor of Lot 2 Block 1 on Plan of Subdivision 006566 from 11 December 2017.
An email from Balfe & Webb, Barristers and Solicitors to Mr Murray and his mother dated 20 December 2017 indicated that the administration of the estate had been finalised; with the property transferred into Mr Murray’s name and the balance of funds had been paid into his account.
On 4 January 2018 Mr Murray completed a Centrelink Real Estate Details Form in which he advised Centrelink that he had inherited the Seaford property on 20 December 2017.
On 20 November 2018 Centrelink notified Mr Murray via his MyGov account of the following information that they held on his Centrelink record, and requested he contact them as soon as possible if any details were incorrect:
Income Statement

DOB  29 Aug 1970
Customer Partnered  N
Maximum Rate Carer Payment  Y
Number of Children Assessed  0
Previous regular entitlements and payments

Payment Type Amount Date Paid Date of Grant

Carer Payment $834.40 15 Nov 2018 2 May 1996

Energy Supplement $14.10 15 Nov 2018 2 May 1996

Pension Supplement $67.80 15 Nov 2018 2 May 1996
Previous irregular payments

There are no previous irregular payments to report.

Deductions from your payment

There are no deduction details to report.

Future regular entitlements and payments

Payment Type Amount Date to be paid Date of Grant

Carer Payment $834.40 29 Nov 2018 2 May 1996

Energy Supplement $14.10 29 Nov 2018 2 May 1996

Pension Supplement $67.80 29 Nov 2018 2 May 1996

Future irregular payments
There are no future irregular payments to report.

Details of your Income (Not including Centrelink payments)
Income Type      Amount          Frequency                 Date of Effect
Financial Investment Income                $4,411.42        Annually                    1 Jul 2018

Details of your Assets
Asset Type   Value   Date of Effect
Cash/Investments/Savings        $159,367.00   28 Dec 2017
Asset Type   Amount          Currency Type   Date of Effect
Cash/Investments/Savings        $9.00             AUD   29 Apr 1996
Institution name                   Product type     No of units      Unit value       % owned
Bank of MelbournePersonal Current   100
A/c

Asset Type   Amount          Currency Type   Date of Effect
Cash/Investments/Savings        $100,000.00     AUD   28 Dec 2017
Institution name                   Product type     No of units      Unit value       % owned
ANZ BankTerm Deposit   100

Asset Type   Amount          Currency Type   Date of Effect
Cash/Investments/Savings        $59,358.00      AUD   28 Dec 2017
Institution name                   Product type     No of units      Unit value       % owned
ANZ BankSaving Account   100
If any of the above details are incorrect, please contact us as soon as possible.

During the period 3 January 2018 to 20 August 2019 the Australian Taxation Office, Centrelink, Westpac Bank, ANZ Bank, Vic Roads and the Victorian State Revenue Office, recorded Mr Murray as residing in Moorabbin.
Centrelink online documents record the following:
(a)17 August 2020
Waive option considered, but not appropriate. Cust failed to advise of correct value of assets. The asset test meant there was: Nil entitlement to payment. This resulted in an overpayment of CPA from 03 JAN 2018. Overpayment is a result of coding of inheritance of property at Seaford resulting of over the asset amount with NIL entitlement. Two attempts made to contact customer regarding potential debt without any success.
(b)28 August 2020
Customer contacted CENTRAL QLD FIS on 28 AUG 2019 regarding Centrelink Specialist Contact for Carer Payment. Information was obtained via Module R – Real Estate details using Internal Channels.
…
As part of FIS Targeted Focus Initiative was allocated MODR scan dated 9/1/2018 (also reference UNS007 scans dated 28/12/2017 and doc of that date). Customer advised of inheritance, SO coded the cash and gave Mod R for inherited real estate. This real estate hs not been assessed Txt: until now. A check of commercial real estate websites indicates this property has not been sold since customer inherited it and customer' record shows no change of address
(c)28 December 2017 Mr Murray contacted Centrelink to advise he had inherited a property and cash funds as at 22 December 2017 and documentation was sighted and noted in the system; and
(d)29 April 1996 Mr Murray lodge a carer pension claim.
CONTENTIONS
Applicant
Whether carer payment was correctly cancelled from 3 January 2018
The Applicant contended that Mr Murray’s Seaford property (worth $650,000.00), along with his cash inheritance of $158,332.66, must be taken into account for the purposes of calculating his carer payment; the combination of which exceeded the asset value limit of $755,000 for non-homeowners on the day Mr Murray received his cash inheritance, being 21 December 2017.
The Application of Asset Test
In December 2017, a carer payment was not payable to a homeowner if their assets were above $456,750.00; and not payable to a non-homeowner if their assets were above $755,000. In accordance with section 11 of the Act, the Applicant submitted Mr Murray’s Seaford property and his cash inheritance were assets for the purposes of calculating the rate of his carer payment, unless an exemption applied to disregard some or all of the assets.
Whether Seaford Property was Respondent’s principal home and can be disregarded
The Applicant argued the AAT1 decision was incorrect to apply the exemption in section 11A(9) of the Act pertaining to a person’s principal home, and determining that Mr Murray’s Seaford property was to be disregarded from the asset test for carer payment. The Applicant argued the Seaford Property was not Mr Murray’s principal home as at the date of his inheritance, or at any time during the relevant period, for the following reasons:
(a)There is no evidence that Mr Murray ever established the Seaford property as his home once he inherited it. Mr Murray did not advise that he was living in the Seaford property when he notified the Agency of the inheritance. At Question 13 of the Mod R signed by Mr Murray on 4 January 2018, he advised that he did not live in the Seaford property and the handwritten notes adjacent to this question note that he intended to make it his principal residence when made liveable The Applicant argued an intention to make a residence a home at some point in the future is insufficient. While the Tribunal in some decisions has found that a person’s intention to return to a residence is an adequate reason to treat it as their principal home even in their absence, it is in circumstances where a person had already established that residence as their home. Those decisions can be distinguished from the present matter. In this case, Mr Murray never established the Seaford property as his principal home.
(b)The Applicant argued there was no corroborating evidence of Mr Murray having lived or made any preparations to live in the Seaford property, such as changing his address, arranging utilities to be connected, moving his furniture and belongings in etc.
(c)Information from Vic Roads, ANZ, Bank of Melbourne, and ATO show that the residential details for Mr Murray during the relevant period was the Moorabbin property.
(d)The Applicant argued it was highly unlikely that Mr Murray lived in the Seaford property as he described it as unliveable in December 2017, when he inherited it. The Applicant noted Mr Murray advised in his Mod R form the value of the property was affected by the presence of asbestos, vandalism, holes in ceilings and floor, lack of onsite parking, missing cladding, building rubble, lack of a gas service and poor fencing.
(e)The Applicant contended that even if it can be accepted that Mr Murray stayed in the Seaford property for a few nights, it is unlikely that alone would make it his principal home.
The Applicant contended that all the evidence suggests that Mr Murray ate, slept, and performed ordinary domestic activities for most of the relevant period in the home where he provided care to his mother. The Applicant argued that previous Tribunal decisions have found that the fact that a person may visit a premise and stay overnight from time-to-time is not sufficient; nor is any evidence of emotional attachment, or living arrangements outside of the relevant period. The Applicant, by way of example, took the Tribunal to the case of Gazal and Secretary, Department of Family and Community Services (2004) 85 ALD 730. There the Tribunal found that the Applicant’s principal home was the residence that she was caring for her mother in, and not the residence that she was renting to spend a few nights in as a respite from the care occasionally and where she had stored some of her possessions. Senior Member Kelly stated that:
24. The Woollahra apartment provides storage for some of Mrs Gazal ’s possessions and provides a sanctuary for her for a few hours when she is able to get there. Applying the test in Hafza, Mrs Gazal has a continuity of association with both Bondi and Woollahra, an intention to return to both places but an attitude that Woollahra is "her home".
25. It is useful to return to the decision of Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation [1941] HCA 13; (1941) 64 CLR 241 at 249 where Williams J said:
"The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode."
26. Applying that test and the meaning of "principal home" determined by Deputy President Forgie, I conclude that despite Mrs Gazal’s subjective belief that Woollahra is "her home", on the facts, the Mitchell Road, Bondi unit is her "principal home". While Mrs Gazal does sometimes eat a meal at the Woollahra apartment and spends time there when she can, she had only slept there one night at the time of the hearing. She sleeps at Bondi, spends most of her time there, does the shopping for the home and cares for her mother there, for which she receives a carer allowance. The fact that she will be sleeping at Woollahra during the period her mother is in respite care does not alter the fact that her principal home is the Bondi unit. Once her mother returns to the Bondi unit, Mrs Gazal will resume her role as her carer.
The Applicant argued that previous cases have established the following key principles when determining a person’s residence as a principal home:
(a)Assessing the criteria for what constitutes principal home is a question of fact’; to be decided after having regard to all relevant circumstances of the case and is a mix of objective and subjective criteria.
(b)Mere ownership does not make a residence a person’s principal home, having regard to the purpose and object of the asset test in the Act.
(c)As a general proposition, a person’s principal home is where they spend most of their time and where they usually eat, sleep, and perform ordinary domestic activities; and is a place that has the characteristics of permanency. Typically, this would involve a physical presence in, as well as an intention to treat a residence as a home.
(d)However, it is not always necessary for a physical presence to coincide with intention. A residence can be a person’s principal home even if the person is not physically present, provided the person has established a home in that particular residence, has a continuity of association with that place, an intention to return to that place, and an attitude that the residence remains a home.
(e)Some factors relevant to the consideration are the time spent in a particular place, legal occupation, the intention, emotional/physical connections and attachment to the residence, such as whether a person has moved their belongings into the dwelling, the address to which the person has their mail delivered and whether utilities are connected etc.
The Applicant contended that the exemption in section 11A(9) of the Act, or any other exemptions in the Act pertaining to a person’s principal home, did not apply to Mr Murray’s Seaford property. In order for the Seaford residence to continue to be Mr Murray’s principal home as at the date of inheritance, or at any time during the relevant period, it must have first been his principal home at some prior time. Therefore, the Applicant contended that Mr Murray’s Seaford property is an asset that cannot be disregarded in calculating his rate of carer payment.
The Applicant contended that the two-year exemption period, referred to by Mr Murray and the AAT1, does not apply in this instance as the Seaford property was never Mr Murray’s principal home. The Applicant submitted that any reference to the principal home and its exemptions in the Module R Real Estate Details form was general; and did not mean that the Mr Murray’s Seaford property was his principal home and therefore exempt from the carer payment asset test. The Applicant argued that Mr Murray had not provided any argument as to why the Seaford property should be considered his principal home and be exempt from the asset test.
Whether Mr Murray is a homeowner
The Applicant argued, in accordance with section 11(4) of the Act and Instruction 4.6.3.20 of the Guide, that Mr Murray is considered a non-homeowner because the Seaford property was not his principal home, and there was no evidence he had a right or interest in the Moorabbin property where he lived during the relevant period. Therefore, he is subject to the asset value limits for non-homeowners.
The date of cancellation
The Applicant argued, in accordance with section 93(1)(h) of the Administration Act, that Mr Murray’s carer payment ceased to be payable and was automatically cancelled at the end of the notification period from 5 January 2018, for the following reasons:
(a)his carer payment exceeded the asset value limit for non-homeowners from 21 December 2017 when he owned the Seaford property and received the cash inheritance;
(b)he was under an obligation to advise of any changes to his assets within 14 days of the change, in accordance with the notice dated 7 December 2017, issued pursuant to section 68(2) of the Administration Act;
(c)that as Mr Murray notified the Department on 28 December 2017 which was within 14 days of him receiving the cash inheritance on 21 December 2017, section 93(1)(h) of the Administration Act applies and his carer payment remained payable until the end of the 14 day notification period, which was the 4 January 2018.
(d)On 5 January 2018, the Respondent’s carer payment was therefore automatically cancelled.
Whether there is a carer payment debt, and if so, for what period
The Applicant argued that applying the asset test means that Mr Murray had nil entitlement to carer payment for the period 5 January 2018 to 28 August 2019, and was therefore overpaid carer payment; and had incurred a debt to the Commonwealth in accordance with section 1223(1) of the Act.
Additionally, the Applicant argued that there was also a separate carer payment debt for the period 11 December 2017 to 20 December 2017, on the basis Mr Murray’s Seaford property was not taken into account in calculating his rate of carer payment. The Applicant contented that on 11 December 2017, Mr Murray inherited the Seaford property worth $650,000 and the value of this property exceeded the asset value limit for non-homeowners of $552,000. As such, he was not entitled to receive full rate of carer payment from 11 December 2017 to 20 December 2017, and the amount overpaid is a debt due to the Commonwealth, in accordance with section 1223(1) of the Act.
Whether there is a debt due to deemed income
The Applicant contended that the AAT1 decision found that there was a further carer payment debt for the period 3 January 2018 to 30 June 2018, because the deemed income from Mr Murray’s cash inheritance was not taken into account in calculating his carer payment rate.
The Applicant submitted that it was not necessary to consider any debt caused by income, because, by correct application of the assets test, Mr Murray had no entitlement to carer payment from 5 January 2018. Additionally, no debt arises before 5 January 2018 due to the application of section 93(1)(h) of the Administration Act.
Applicant’s Conclusion
The Applicant ultimately contended that:
(a)Mr Murray’s carer payment was subject to the asset test, and both the Seaford property and his cash inheritance were assets;
(b)his Seaford property was not his principal home and cannot be disregarded in calculating his rate of carer payment under paragraph 1118(1)(a), section 11(A)(9), or any other sections of the Act that applies to a person’s principal home;
(c)Mr Murray was a non-homeowner because he was not living at his Seaford property;
(d)Mr Murray exceeded the asset threshold for non-homeowners on 21 December 2017 due to the combined value of his cash inheritance and the Seaford property; and
(e)his carer payment ceased to be payable and was automatically cancelled from 5 January 2018 in accordance with section 93(1)(h).
Respondent
Mr Murray question the whole validity of the review process, given it had already been determined, by not 1 but 2 AAT1 hearings, that his carer payment had been cancelled incorrectly and he did not owe a debt to the Commonwealth.
Mr Murray was most concerned by the documentation that was before the Tribunal on which it was making an informed determination. Mr Murray had on numerous occasions raised concerns that much of the material he had supplied to Centrelink during his 4 January 2018 visit was not recorded anywhere on the system. Asking:
How can a member of the public have a fair hearing when the Secretary determines what documents are provided to the Tribunal? At this hearing instead of looking at the most important documents of the 4 January 2018 and the discussions of Canberra after receiving the Module R Form statutory declarations, the Member will be looking at 6 pages of digital TV antennas in the year 2013, never presented before.
Mr Murray contended that Centrelink as a model litigant continued to put the onus on him to present facts which Centrelink already knew to be true; and presented facts they knew cannot be true. Mr Murray argued that the concealment of the 4 January 2018 documentation needs to be taken into consideration with this “unlawful debt”.
Mr Murray argued that whether he was classified as a homeowner, a non-homeowner, or ineligible owner does not detract from the fact that the Department had everything they needed on the 4 January 2018 to determine what payment he should receive. Mr Murray argued he had met his statutory obligations not once but five times during the notification period. Mr Murray contended that if Centrelink had met its obligations, he would never have incurred a debt of $40,000, which he claimed included a sum of over five and a half thousand dollars never paid into his bank account; and he would still be receiving some payment.
Mr Murray argued his carer payment should never have been cancelled by Centrelink as he should have been considered an exempt homeowner. Mr Murray argued the determination of the AAT1 hearing was correct, and that Seaford should have been considered his principle place of residency and excluded from the assets test.
Mr Murray argued that a two-year exemption period should have applied, as determined by the first AAT1 hearing, as he was required to be absent from his Seaford residence as his mother required a substantial level of constant care, which could only be provided to her in her own home.

Mr Murray was outraged by the suggestion that he was not entitled to carer payment and had been advised to reapply after 24 years of caring for his mother. Mr Murray emphasised the significant health issues his mother has suffered, having been diagnosed with two brain tumours in 1996. 10 years later she had a stroke with complications from a brain operation. Which all continued to cause her severe problems with her sight, loss of hearing and balance. Additionally, his mother suffered a cerebral aneurysm, and has chronic medical conditions include bladder cancer, lung disease, palsy and osteo-arthritis. Mr Murray observed that his mother is only allowed out with supervision and he can only leave her if someone else is able to be with her. Mr Murray advised the Tribunal his nephew was a help; and he could call on him to sit with his grandmother if needed.
Mr Murray took exception at the Applicant’s statement in its material for the hearing "if he is still caring for his Mother” describing it as vexatious and frivolous. Mr Murray also disputed the accusation he had not changed his details to reflect he was resident at the Seaford property. Mr Murray observed that Centrelink could have easily obtained his mother's hospital records to verify her medical conditions; and records from the Government Land Tax Authority, RTA, electoral roll, and the council, which would clearly indicate his mother requires contest care and he had changed his residential address to Seaford.
Mr Murray disputed Centrelink’s determination that he was a non-homeowner. Mr Murray noted that the State Government classified him as a homeowner in early 2018, and that he was the registered proprietor of real property for which he held secure tenure. Mr Murray argued that as he did not purchase the property, but it was gifted as part of an inheritance, the asset should have had a two-year exemption period. Mr Murray argued Centrelink was required to contact him six weeks before the end of the two-year exemption period, to discuss the implications of how he would be affected by the inclusion of his property as an asset.
Mr Murray argued that, under the Act, to receive carer payment he was required to provide constant care in the home of the recipient, which he had for the past 24 years and continued to do, despite receiving no income for the work he had already completed over the past 2 years. Mr Murray argued that Centrelink should have advised him that he could receive the carer payment and not reside with his mother.
Mr Murray argued Centrelink had failed in its duty of care to him by failing to accurately record and act on all the information he had provided to them for a period of two years. That this failure to take into account his assets when calculating his rate of carer payment resulted in his debt and, was due entirely to administrative error on the part of Centrelink. Mr Murray argued Centrelink’s failure to advise him of how his inheritance would impact his carer payment had resulted in his loss of his carer payment and health care card, which had impacted his ability to survive greatly.
Mr Murray argued that he had never deceived Centrelink in respect of his inheritance, the state of the house, or where he was residing. And that he had provided all information accurately on the Module R form provided to him by Centrelink. Mr Murray argued that on the Module R form he had recorded he intended to reside in the Seaford home 'When liveable"; as he had been advised by the executor's solicitor that he must not touch the property for six months in case the will was contested. Additionally, Mr Murray argued that the Seaford house was not liveable for his mother as there was no walk-in shower and it has only 2 bedrooms. Mr Murray advised that the house was liveable for his nephew who has lived in the property since 2016, and still did, rent free. Mr Murray advised that his nephew was a welfare recipient who had been evicted from his mother's (Mr Murray’s sister) home with her dog, by the Department of Housing, after her death.
Mr Murray stated the Seaford property had great emotional status as his nephew's childhood was spent at this property and the family was well acquainted with the previous owner. Mr Murray had visited the property over many years before it was gifted to him and he had moved his sister's furniture to the property. Mr Murray’s advised that his nephew would inherit the Seaford property, that he was not in a position to sell the property as this would leave his nephew homeless, and that Mr Murray and his mother were his nephew’s only family.
CONSIDERATION
Was Mr Murray’s carer payment correctly cancelled from 3 January 2018?
The Applicant argued the relevant date of consideration for carer payment cancellation and subsequent debt should be considered in light of the established principle that the Tribunal should take into account all the facts and circumstances that exist up until the time of the decision, unless there is a statutory basis for confining the further material; as decided by the High Court in Shi v Migration Agents Registration Authority (2008) 235 CLR 286, where Hayne J and Hayden J stated that:
Once it is accepted that the Tribunal is not confined to the record before the primary decision-maker, it follows that, unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision-maker to act; there is nothing in the AAT Act which would provide such a limitation.
The Applicant further contended that this settled principle has been applied by a number of cases such as Re Aged Care Services 27 (Kirralee) Pty Ltd and Secretary, Department of Health and Ageing (2009) 113 ALD 546, Re Wanrooy and Minister for Infrastructure, Transport, Regional Development and Local Government (2010) 118 ALD 436; Priestley and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 185; Skinner and Secretary, Department of Social Services [2015] AATA 569; Burton (Migration) [2018] AATA 4220; Stjepic and Secretary, Department of Social Services [2015] AATA 979.
The Applicant argued that the Department made a decision to cancel Mr Murray’s carer payment from 3 January 2018 because his assets (Seaford property and cash inheritance) exceeded the asset threshold for carer payment. As such, with respect to carer payment cancellation, the Tribunal can only consider whether Mr Murray was qualified for carer payment as at the date of cancellation. This has been established by cases such as Freeman v Secretary, Department of Social Services (1988) 19 FCR 342, Shaer and Secretary, Department of Social Services [2015] AATA 1005, Malik and Secretary, Department of Social Services [2015] AATA 649 and Saad and Secretary, Department of Social Services [2015] AATA 160.
However, the Applicant noted there is nothing in the Social Security Act 1991 or the Administration Act that precludes the Tribunal from considering the facts and material after the date of cancellation, if it is relevant to whether Mr Murray was qualified to receive carer payment as at the date of cancellation. This was made clear by the Federal Court in Freeman v Secretary, Department of Social Services 19 FCR 342 where the Court held:
9. The jurisdiction of the Tribunal arose from the application made to it to review the decision of the delegate who, on 18 August 1987, affirmed the decision of the officer made on 19 May 1987. The function of the Tribunal was therefore to reconsider the decision of 19 May 1987 and to determine whether the decision to cancel Mrs Freeman's widow's pension at that time was the correct or preferable decision to have been made. In coming to its decision, the Tribunal was entitled to take into account all the facts proved before it. But the issue was whether, having regard to those facts, the decision to cancel made on 19 May 1987 was the correct or preferable decision, not whether Mrs Freeman had an entitlement to a widow's pension as at the date of the Tribunal's decision.
With respect to the carer payment debt however, there is nothing in the Social Security Act 1991 or Administration Act that limits the inquiry to Mr Murray’s circumstances at the time of the original decision. Therefore, it is open to the Tribunal to take into account material after the cancellation of carer payment in deciding whether Mr Murray was entitled to carer payment during the relevant period, as well as the basis, quantum, write-off and waiver of the debt.
Mr Murray contended that he could not be treated fairly when the Applicant has now accused him twice of fraud and had not provided him with documentation that has never appeared in two FOI requests or at the Tribunal hearings. Mr Murray argued that the Applicant has brought in these matters after cancellation but now says they are irrelevant. Mr Murray asked if the Applicant now maintains these accusations are irrelevant then why were they being put before the Tribunal. Mr Murray strenuously asserted that the matter of fraud was certainly not irrelevant to him, noting fraud is a question of law and needs to be addressed.
The Tribunal understands that Mr Murray is rightly aggrieved by this whole process. The Tribunal from the outset wishes to assure Mr Murray that at no stage did it find Mr Murray had acted dishonestly or fraudulently in his dealings with Centrelink. Indeed, the Tribunal found Mr Murray a forthright witness, who has acted at all times in accordance with his Centrelink requirements.
The Tribunal found that Mr Murray, whilst obviously continuing to care for his frail, and elderly mother who suffers from severe medical conditions, was nevertheless not entitled to carer payment from 5 January 2018 as his assets exceeded the asset threshold for non-homeowners on 21 December 2017, due to the combined value of his cash inheritance and the Seaford property.
The Tribunal determined the correct date of cancellation to be 5 January 2018 as Mr Murray had advised Centrelink within his 14-day reporting period of his change in circumstances. The Tribunal did not find an earlier date could be established, as Mr Murray was only advised of his change in circumstances by the solicitors acting on behalf of the executor on 21 December 2018, and not on the day title for the Seaford transferred into his ownership.
The Tribunal determined that Mr Murray’s Seaford property was not his principal place of residence from 21 December 2017 until 20 August 2019; and therefore could not be disregarded in calculating the value of his assets even though he had a right in the property that gave him reasonable security of tenure in the home, as at no stage was the property his principle place of residence.
The Tribunal determined that the Seaford property was not Mr Murray’s centre of gravity, where he slept, cooked, ate, washed himself, kept his belongings or generally resided. The Seaford property has never in fact been Mr Murray’s home; and as such, in accordance with the Act, cannot be exempted from the asset tests. The Tribunal found there was insufficient ongoing continuity of association with the Seaford property to enable it to be properly described within the context of the Act as Mr Murray’s principal home.
The Tribunal relied upon the matter of Kulshrestha; Secretary, Department of Family and Community Services (2003) 73 ALD 438, where Deputy President Forgie held that:
25……‘Although not defined in the Act, the term has been considered by this Tribunal in Re Samek and Secretary, Department of Social Security (1988) 16 ALD 295 and Re Dickeson and Secretary, Department of Social Security [1989] AATA 190; (1989) 18 ALD 58. In Re Clark and Secretary, Department of Social Security (Mr McMahon (then Senior Member), 4 November 1986, No.2968, unreported) it was said that: “A characteristic of a person's home is that he usually resides there. It is by no means necessary, however, that both go hand in hand.”
26. Having regard to the principles in the authorities and to the ordinary meaning of the expression, what is Dr Kulshrestha ’s principal home? The place in which Dr Kulshrestha resides is 47 Braeside Avenue. It is the place where he cooks, eats, sleeps, washes himself and his clothes and generally lives. It is the place where he usually resides and it is the place that he regards as home.
66. In Real and Secretary, Department of Employment and Workplace Relations (2006) 92 ALD 244, the Tribunal stated that:
54. In summarising, a reference to somebody’s home is the place where their centre of gravity is and it is really a mixture of both objective and subjective criteria…….
67. In MacNamara and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 40, the Tribunal stated:
33.It is important to recognise that section 1118(1) of the Act is concerned not with “residence” but essentially with ownership of a right or interest in the person’s home. Indeed section 11(4) refers to “home owner”. But clearly mere ownership of a home is not sufficient. The general purpose of the relevant provisions of the Act is to exempt the value of the person’s interest in the home if there is a sufficient ongoing continuity of association with the home to enable it to be properly described within the context of the Act as that person’s principal home.
34.As was said in Matula (and see also Inland Revenue Commissioners v Lysaght [1928] AC 234 (per Viscount Sumner, Lord Atkinson, Lord Buckmaster and Lord Warrington) whether a person’s property continues to be that person’s principal home is a question of fact to be decided after having regard to all of the relevant circumstances of the case.
Additionally, the Tribunal determined that no exemptions applied to the Seaford property, most particularly section 11A(9) of the Act, as at no stage had the property been Mr Murray’s principal place of residence. The Act clearly states that for the 2-year exemption period to apply the person’s residence must continue to be the person’s residence. At no stage was the Seaford property Mr Murray’s residence prior to his inheritance on 21 December 2017, or subsequently. Therefore, the Tribunal determined that Mr Murray’s Seaford property was an asset that cannot be disregarded in calculating his rate of carer payment.
Whilst the Tribunal appreciates Mr Murray does not consider the Seaford property as an asset but a liability at this stage, as he has no intention of selling it or charging his nephew rent ,nevertheless, for the purposes of the Act, the property is considered an asset; and it cannot be exempt as his home for the purposes of the asset test.
As the Tribunal has determined the Seaford property is not Mr Murray’s principal place of residence, it therefore also determined he was a non-homeowner in accordance with the Act as he did not live in the property. During the debt period this meant Mr Murray’s allowable assets value limit to receive a full rate of carer payment was $552,000 (compared to $253,750.00 for a homeowner). Being assessed as a non-homeowner may be to Mr Murray’s advantage if he seeks to retest his eligibility for carer payment in the future.
Based on all the evidence before it, the Tribunal determined that Mr Murray was not entitled to carer payment from the date of cancelation, being 5 January 2018, because his assets exceeded the asset value limit for non-homeowners.
Does Mr Murray owe a debt of carer payment?
Given the Tribunal has found that Mr Murray’s carer payment was correctly cancelled, it then determined, based on all the evidence before it, that Mr Murray had been overpaid $40,004.01 in carer payment for the period 3 January 2018 to 20 August 2019 as his assets exceeded the asset value limit; and he has a legally recoverable debt owed to the Commonwealth.
The Tribunal then explored if any of the debt was attributable to administrative error on the Applicant’s part; or if there were special circumstances to write off or waive all or part of the debt.
Writing-off the debt
The Tribunal, standing in the shoes of the Secretary, has the discretion to write-off the debt under section 1236 of the Act.
The Applicant submits that the Respondent’s debt cannot be written-off under section 1236 of the Act for the following reasons:
(a)the debt is not irrecoverable at law;
(b)Mr Murray has clear capacity to repay the debt, as evidenced by his savings of over $150,000 as well as his property worth $650,000;
(c)recovery of the debt would not cause Mr Murray severe financial hardship, given his assets;
(d)Mr Murray’s whereabouts are known and it is cost-effective for the Commonwealth to recover the debt; and
(e)Mr Murray has stated previously he had capacity to pay when he noted that ‘I have capacity to pay and can provide the Tribunal with that evidence if required’.
Based upon the evidence before it, the Tribunal finds it is not reasonable to write-off the debt under s 1236 of the Act as Mr Murray did not meet the requirements of the Act.
Waiver the debt on the basis of administrative error
Under section 1237A of the Act, the Tribunal has a discretion to waive the right to collect the debt, if it was due solely to administrative error.
Mr Murray contended that the debt was solely attributable to a Centrelink error and should be waived in its entirety.
Period 5 January 2018 to 7 December 2018
The Applicant accepted that the debt for the period from 5 January 2018 to 7 December 2018 should be waived due to sole administrative error under section 1237A of the Act for the following reasons:
(a)Mr Murray notified the Department of the Seaford property on 20 December 2017 and again on 4 January 2018;
(b)the Department failed to action this notification due to an administrative error and take it into account in calculating Mr Murray’s rate of carer payment;
(c)until the notice dated 20 November 2018 was sent to Mr Murray, he had no way of knowing that his Seaford property was not being taken into account and did not contribute to the error;
(d)therefore, the debt was caused by sole administrative error and Mr Murray received the funds in good faith during this period.
Based on the evidence, the Tribunal finds that part of the debt did result solely from an administrative error by Centrelink; as it failed to act on the information provided by Mr Murray. As a consequence, a portion of the debt must be waived. The Tribunal found the debt for the period from 5 January 2018 to 7 December 2018 should be waived, as Mr Murray could not reasonably be expected to realise incorrect information had been utilised in the calculation of his carer payment. Mr Murray had no way of knowing the property at Seaford would be considered an asset and had not been taken into account in calculation of his carer payment.
The Applicant, however, contends that the remaining debt cannot be waived under section 1237A of the Act.
Period from 11 December 2017 to 20 December 2017
The Applicant argued the debt for the period 11 December 2017 to 20 December 2017 cannot be waived because Mr Murray did not advise the Department of his Seaford property, and therefore the debt is not attributable to the sole administrative error of the Department.
Mr Murray argued that he contacted Centrelink as soon as he could, to advise of his change in circumstances. That this was the day after his circumstances changed at 4.28 pm on 21 December 2017; which he contended was the start date of his reporting period. Mr Murray argued he was not aware the property had been transferred to him on an earlier date as all this was being handled by the lawyers acting for the executor of the will. He advised that the executor of the will, being his mother, was also not informed prior to the lawyer’s advice of finalisation of the estate at 4.28pm on 21 December 2017.

The Tribunal was a little surprised the Applicant had sought to include this period in Mr Murray’s debt, given they had accepted administrative error existed for the portion of the debt from 5 January 2018.
The Tribunal found that this portion of the debt should be waived on account of special circumstances, as Mr Murray and Centrelink were not mind-readers. The email from Balfe Webb Solicitors on 20 December 2017 clearly indicates the administration of the estate had been finalised, with the property transferred into Mr Murray’s name and the balance of funds had been paid into his account. This was the first time Mr Murray was aware of a change in his circumstances and he therefore advised Centrelink, in accordance with his obligations as accepted by Centrelink.
The Tribunal accepted that the Certificate of Title for the Seaford property did indicate Mr Murray was the registered owner on 11 December 2017. However, this was in the hands of the solicitors acting on behalf of the executor of the will and Mr Murray was unaware of his change of circumstances on 11 December 2017.
The Tribunal found administrative error in respect of the portion of the debt for 5 January 2018 to 7 December 2018, and that Mr Murray was unaware of his change in circumstances prior to him advising Centrelink. Therefore, the Tribunal determined that backdating of this amount should not be applied to Mr Murray’s debt and it determined the debt for the period 11 December 2017 to 20 December 2017 should be waived on the basis of special circumstances.
Period 8 December 2018 to 20 August 2019
The Applicant contended that the debt for the period 8 December 2018 to 20 August 2019 is not due to sole administrative error of the Department, for the following reasons:
(a)On 20 November 2018, Centrelink sent Mr Murray an income and asset notice showing his cash inheritance, but not his Seaford property. The notice also included a requirement under section 68(2) of the Administration Act to notify Centrelink if any of the details in the notice were incorrect. Centrelink records show that this notice was sent by post and the Respondent is deemed to have received this notice on 7 December 2018, in accordance with section 160 and 163 of the Evidence Act 1995.
(b)Mr Murray was therefore under an obligation from 8 December 2018 to advise the Department of the fact that his Seaford property was not being taken into account in calculating his rate of carer payment. By failing to do so, he has contributed to the debt.
(c)A number of Tribunal cases have established that if a person fails to comply with a notice given under section 68(2) of the Administration Act, then there can be no sole administrative error. In Locke and Secretary, Department of Social Services [2014] AATA 904, the Tribunal held that:
36. The Tribunal agrees with the Secretary’s contention on this issue. Although Ms Locke may have been told many years ago by a Centrelink officer about what should or should not be included in her gross income for DSP purposes, she was still responsible for checking the accuracy of the information contained in the letters, (i.e. s 68 “notices”) sent to her by Centrelink throughout the Relevant Period and for notifying Centrelink of the correct amount of her “gross income”. In such circumstances, it cannot be said that Ms Locke’s debt is attributable “solely” to an administrative error by Centrelink: Sekhon v Secretary and the Guide (at 6.7.3.30). Consequently, Ms Locke’s debt must not be waived under s 1237A of the SSA.
(d)In Barnes and Secretary, Department of Social Services [2014] AATA 786, the Tribunal held that:
43. The Secretary accepts that until 22 September 2010, it was Centrelink’s error alone that caused that part of the debt (which was waived by the ARO). From that time, the Secretary contends, Ms Barnes contributed to the debt by not providing information in response to Centrelink’s information notices. Ms Barnes contends that she provided the correct information at the outset and that information was updated for FTB and CCB purposes.
47. Sole administrative error does not require that Centrelink made no mistakes, but that the debtor made no contribution to the error. When Centrelink sent out an information notice on 20 September 2010, it included a requirement that Ms Barnes advise when her partner’s income went above $800 per fortnight, a figure it was already above. Ms Barnes does not remember reading that, and she suggests that not all letters arrive at a country address. Further, she suggests that she was under the impression that if her partner’s income stayed below $42,000 annually her benefit would be unaffected. I do not accept Ms Barnes’s explanation. The figure of $42,000 has no obvious source, and that Ms Barnes mistakenly believed it to be the figure at which the benefit would be affected has no bearing on my decision. Letters do go astray from time to time, but rarely, and surely not all the letters from Centrelink did so. As the respondent points out, under ss 28A and 29 of the Acts Interpretation Act 1901, Ms Barnes is taken to have received them. Ms Barnes seems to have treated the information notices, whether she did not read them, read them cursorily or read then carefully, with blithe disregard. After Centrelink began to send them out in September 2010 Ms Barnes became a contributor to the error.
49. Ms Barnes’s argument treats the receipt of Centrelink benefits as a form of ‘set and forget’ arrangements in which the onus of calculating and delivering benefits was entirely on Centrelink’s shoulders. That is not how the social security system operates: it is a system of mutual entitlements and obligations. A person may establish that they have entitlements, but the entitlements come with obligations, central among which is the obligation to keep Centrelink informed. Ms Barnes did not do so – indeed she seems to have made no effort at all to do so – and the overpayment is the result of that inactivity.
50. I find therefore that the error was not the sole administrative error of Centrelink from the time of the first information notice. That notice was sent out on 20 September 2010 and it required Ms Barnes to inform Centrelink within 14 days of the various matters detailed. Ms Barnes defaulted on that obligation when those 14 days were past that is on 4 October 2010. Under s 100 of the Administration Act, the matter she was obliged to tell Centrelink about – her partner’s income – would then have been applied to the calculation of the payment not from the time it was notified but from the time it was relevant, that is from the start of the payment of PPP. But s 1027A of the Act requires that the decision-maker must waive the proportion of the debt that arose from Centrelink’s administrative error alone. That error continued up to the time of Ms Barnes’s default, and the debt should be waived up to 4 October 2010.
(e)In Stafford and Secretary, Department of Social Services 2018 AATA 2746, the Tribunal stated that:
78. ...It is at least arguable that, had the Applicant fully complied with the reporting requirements imposed on him, the debt for which he now finds himself liable might not have accrued. Without further evidence it is ultimately impossible to determine if this would have been the case. However, it is certainly not the case that, given his failure to comply with the reporting requirements made clear in the notices sent to them, the debt in question can be blamed solely on an administrative error on the part of the Commonwealth. 79. In the circumstances, section 1237A of the Act has no application to the facts of this case and the debt in question cannot be waived under section 1237A of the Act.
(f)This was followed by the Tribunal in cases such as GGGD and Secretary, Department of Social Services [2020] AATA 802.
The Applicant therefore contended that as Mr Murray failed to fully comply with the notice of 20 November 2018, he contributed to his overpayment of carer allowance.
The Applicant originally submitted an income and asset notice dated 20 November 2018 (Ref ID: J268987708) was sent to Mr Murray via post (the notice) and was deemed to have been received on 7 December 2018. However, the Applicant found Centrelink records show that the notice was in fact available via MyGov for the Respondent to retrieve and view on 20 November 2018.
The Applicant subsequently submits that Mr Murray is deemed to have received the notice on 20 November 2018 for the following reasons:
(a)Section 9(2) of the Electronic Transactions Act 1999 provides:
(2) If, under a law of the Commonwealth, a person is permitted to give information in writing, the person may give the information by means of an electronic communication, where:
(a) in all cases—at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; and
(b) if the information is permitted to be given to a Commonwealth entity, or to a person acting on behalf of a Commonwealth entity, and the entity requires that the information be given, in accordance with particular information technology requirements, by means of a particular kind of electronic communication—the entity’s requirement has been met; and (c) if the information is permitted to be given to a Commonwealth entity, or to a person acting on behalf of a Commonwealth entity, and the entity requires that particular action be taken by way of verifying the receipt of the information—the entity’s requirement has been met; and
(d) if the information is permitted to be given to a person who is neither a Commonwealth entity nor a person acting on behalf of a Commonwealth entity—the person to whom the information is permitted to be given consents to the information being given by way of electronic communication.
(b)Section 14A of the Electronic Transactions Act 1999 provides that:
(1) For the purposes of a law of the Commonwealth, unless otherwise agreed between the originator and the addressee of an electronic communication:
(a) the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee; or
(b) the time of receipt of the electronic communication at another electronic address of the addressee is the time when both:
(i) the electronic communication has become capable of being retrieved by the addressee at that address; and (ii) the addressee has become aware that the electronic communication has been sent to that address.
(2) For the purposes of subsection (1), unless otherwise agreed between the originator and the addressee of the electronic communication, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee’s electronic address.
(3) Subsection (1) applies even though the place where the information system supporting an electronic address is located may be different from the place where the electronic communication is taken to have been received under section 14B.
(c)Section 72 of the Social Security (Administration) Act 1999 (Administration Act) permits the Department to give a notice containing a requirement under section 68 of the Administration Act to the Respondent by post or in any other manner approved by the Secretary, which includes MyGov.
(d)Mr Murray had consented to receiving notices via MyGov when he subscribed to it on 19 May 2016, which required him to supply his email address and accept the terms and conditions of MyGov. On 19 May 2016, the Department wrote to Mr Murray to notify him that he will receive most of the letters via MyGov and that this service was voluntary, from which he could withdraw at any time. The Applicant contended Mr Murray was also aware that he was receiving his notices by MyGov, as evidenced by the fact that he opened notices sent to him via MyGov on 9 January 2018, 21 March 2019, 29 August 2019 and 13 November 2019
(e)In accordance with paragraph 14A(1)(a) of the Electronic Transactions Act 1999, the Respondent designated MyGov as the electronic address to receive electronic communication from the Department when he subscribed to MyGov on 19 May 2016. Therefore, Mr Murray is deemed to have received the notice on 20 November 2018, when the notice was available to view in the Mr Murray’s MyGov inbox and was capable of retrieval.
(f)This approach was confirmed by RLDY and Child Support Registrar [2020] AATA 688, where SM Puplick stated
21. The Respondent’s position is that the notification of its decision was transmitted to the Applicant on 6 August 2018 in a form to which he had consented – namely, electronically to his MyGov account.
27. In essence the Respondent maintains that the consent of the Applicant to receive information electronically means that section 14A(1)(b)(ii) of the ET Act no longer applies, since 6 August 2018 was the date upon which, had the Applicant opened his MyGov portal, he would have “become aware” of the decision in question.
40. The Respondent’s point is incontestable. The Applicant consented to use the use of the MyGov portal and it is not within his powers to designate that there are limits on its use. Once consent is given, and once a person is enrolled in the MyGov system it is up to the sending authority to determine what is sent and what is not.
To understand the deeming provisions in this case it is necessary to follow the provisions of the ET Act. The Tribunal notes that the various provisions of the Acts Interpretation Act 1901 (Cth) dealing with the service of documents (s 28A) and deemed time of receipt (s 29), contains within section 28A a Note:
The Electronic Transactions Act 1999 deals with giving information in writing by means of an electronic communication.
47. This implies clearly that the provisions of the ET Act are to be taken as those governing forms of electronic correspondence, regardless of anything elsewhere provided.
48. Given that, section 14A(1)(a) of the ET Act is clear:
• The information was capable of being retrieved on 6 August 2018 (section 14A(1)(a));
• The electronic address had been designated by the addressee;
• The becoming aware provisions are not applicable because section 14A(1)(b) refers to “another electronic” address and in any event, the prior condition of s 14A(1)(a) has been met. Section 14A(1)(b) is only available in the alternative to the otherwise satisfaction of s 14A(1)(a).
There is no doubt as to the fact that the Applicant only became practically aware of the correspondence following the 17 September 2018 conversation. The evidence before the Tribunal is that, as of 10 January 2019 the Department’s records show that:
“Our records show that (RLDY) was sent his objection decision letter on 6 August 2018 via on line. CSA records list (RLDY) has not accessed this letter, he last read an on line letter on 17 March 2018.
It was ascertained during a phone conversation on 17 September 2018 (RLDY) had not accessed this letter dated 6 August 2018 and a hardcopy was posted to him on 17 September 2018.”[19]
50. A screenshot copy of the Applicant’s MyGov record[20] and a departmental acknowledgement of the 17 September 2018 conversation[21] are before the Tribunal.
51. However, as the Respondent claims, this situation arose only because of the Applicant’s failure to access his MyGov portal. The ET Act deems that he was capable of doing so as of 6 August 2018 and his personal failure to act cannot be taken as either an excuse for not knowing or more importantly, as justification for setting aside, the deeming provisions of the ET Act.
The Tribunal was concerned by Centrelink’s approach to determining that Mr Murray had been sent a notice on 20 November 2018. The heart of the problem with Mr Murray’s current situation was the lack of administrative care in actioning the information Mr Murray had correctly provided in December 2017. The lack of care in establishing how and when Mr Murray received this notice does not fill the Tribunal with a great belief that such administrative errors are not continuing to compound Mr Murray’s situation.
The Tribunal determined Mr Murray had received the notice of 20 November 2019 via his MyGov account advising of his current rate of payment and the basis on which the rate on had been determined.
The Applicant argued that as the notice contained a requirement under section 68(2) of the Administration Act to notify Centrelink if any of the details in the notice were incorrect, Mr Murray was under an obligation to advise Centrelink of the fact that his Seaford property was not being taken into account in calculating his rate of carer payment. By failing to fully comply with the notice issued under section 68(2) of the Administration Act, Mr Murray contributed to the carer payment debt from 20 November 2018.
Therefore, the Applicant contended the debt for the period from 20 November 2018 to 20 August 2019 was not caused by sole administrative error and cannot be waived under section 1237A of the Act.
Mr Murray accepted he had received the notification of 20 November 2018 but argued he had no way of knowing the details in the notice were incorrect. Mr Murray contended he had already advised Centrelink of his Seaford property and accepted he had fulfilled his obligation to advise Centrelink of his change in financial circumstance, which he had already done on five occasions.
Mr Murray argued that he had no way of knowing his Seaford property was not being taken into account in calculating his rate of carer payment. Mr Murray argued the notice was no different to any other he had received it recorded his cash inheritance and he had believed the Seaford property had been factored in or exempted from the calculation by Centrelink.
The Tribunal did not find that Mr Murray had failed to fully comply with the notice of 20 November 2018, and therefore contributed to his overpayment of carer allowance, as the notice could not be said to contain “sufficient information”. The Tribunal found that the letter sent via MyGov did not effectively convey the information required for ordinary or reasonable persons, within the group of persons to whom the information is directed, to understand what assets had or had not been included in the calculation of entitlement to a benefit.
The Tribunal did not consider the notice of 20 November 2018 was “intelligible” for Mr Murray to determine Centrelink had failed to act on the information he had provided to them on 28 December 2017 at the time his financial circumstances had changed. The tribunal found Mr Murray would not have comprehended that the notice of 20 November 2018 placed an obligation on him to advise of a change in his financial circumstances.
The Tribunal relied upon the determination of Senior Member Theodore Tavoularis in Phelan and Secretary, Department of Social Services (Social services second review) [2019] AATA 554:
2. The notice must be intelligible
It is not necessary to augment intelligibility of a notice via a stipulation that it must contain reasons for the decision or that it otherwise contains other “sufficient information”. The notice need comprise “...no more than the means employed to communicate the decision [such as to make it] intelligible to the person to whom the notice is to be given so that the person is informed of the making of the decision and the content of it.”[16]
The threshold of intelligibility for present purposes is determined by “...how the [notice] would be read by ordinary or reasonable persons within the group of persons to whom the information is directed.”[17] Applied to the present facts, the notices will be found to be intelligible if it is accepted that the Applicant, as an ordinary or reasonable person in the group to whom such a notice would be directed, would (1) understand that a decision had been made, and (2) the content of that decision.

And the matter of Walshe and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1861:
In deciding whether a particular letter effectively conveys the information required it is appropriate to consider how the letter would be read by ordinary or reasonable persons within the group of persons to whom the information is directed. This is similar to the approach taken by the High Court of Australia in considering representations made to members of the public under the Trade Practices Act 1974 (Cth): Campomar Sociedad, Limitada v Nike international Ltd [2000] HCA 12; (2000) 202 CLR 45 at 85.
The Tribunal found the Mr Murrays’ debt for the period 20 November 2018 to 20 August 2019 was caused by sole administrative error and should be waived under section 1237A of the Act as Mr Murray had not failed to inform Centrelink of his change in circumstances. The Tribunal did not find, as the Senior Member had in the matter of GGGD and Secretary, Department of Social Services [2020] AATA 802, to which the Applicant referred, that Mr Murray had failed to advise of his change in circumstances. His circumstances had not changed; Centrelink had failed to act on the advice he had provided. To draw an analogy between Mr Murray and GGGD seems again an overreach on the part of the Applicant in trying to shift the blame for the debt onto Mr Murray. The Senior Member in GGGD found:
Failing to advise of changed circumstances
In the present case the applicants received multiple letters from the respondent over a number of years requiring updated information about their changing circumstances. For example, on 24 November 1992, MXXR was advised:
Under sections 172 and 173 of the Social Security Act 1991 you must tell us within 14 days...if any of these things happen or are likely to happen...If your combined assets go above $160,500.
There are many cases where the reach of s 1237A has been curtailed by the applicant's subsequent failure to inform Centrelink of a change of circumstances. A recent example is Stafford and Secretary, Department of Social Services (Social services second review) [2018] AATA 2746 at, where the Tribunal noted:
78. ...It is at least arguable that, had the Applicant fully complied with the reporting requirements imposed on him, the debt for which he now finds himself liable might not have accrued. Without further evidence it is ultimately impossible to determine if this would have been the case. However, it is certainly not the case that, given his failure to comply with the reporting requirements made clear in the notices sent to them, the debt in question can be blamed solely on an administrative error on the part of the Commonwealth.
79. In the circumstances, section 1237A of the Act has no application to the facts of this case and the debt in question cannot be waived under section 1237A of the Act.
Counsel for the applicant's suggestion that there was nothing to report because their circumstances had not changed overlooks at the very least the escalating value of their real estate.
My conclusions on matters of fact relevant to s 1237A(1) are:
(a) Neither GGGD nor MXXR disclosed the existence of the Queensland property in November 1992 when making their respective claims for DSP and Wife Pension or at any time prior to 8 February 2018;[72]
(b) The existence of number 105 as an assessable property was disclosed to the Department in 1991 (in GGGD's application for sickness allowance);
(c) I make no finding with respect to the alleged disclosure in the 1989 unemployment claim form;
(d) GGGD and MXXR failed to disclose the existence of number 105 when applying for DSP and Wife Pension in 1992 respectively;
(e) There is insufficient evidence before the Tribunal to justify a finding that GGGD or MXXR even contemplated whether the 1991 disclosure of number 105 was sufficient for the purposes of a claim for DSP and Wife Pension in 1992. I am left in doubt as to whether they believed in November 1992 that "no disclosure was required", because number 105 had been "previously disclosed";
(f) I draw a negative inference from the fact that they took no steps in 1992 or thereafter to ensure that all relevant matters were disclosed to the Department.[73]
(g) In any case, the failure to disclose the Queensland property is fatal to a claim of sole attributable error.
The creation of the debts owed to the Commonwealth by GGGD and by MXXR cannot be said to be solely attributable to a Commonwealth administrative error. The applicants were entitled to be paid on the basis of information provided at the time of their claim.
I therefore find that the debts owed by GGGD and MXXR are not solely attributable to an administrative error by the Commonwealth.
The information in the notice was not sufficient for Mr Murray to determine that he was required to again advise Centrelink of the inheritance of the property at Seaford. The Tribunal found Centrelink’s sole administrative error was not mitigated by the notice of 20 November 2019.
Waiving all or part of the debt in special circumstances
Standing in the shoes of the Secretary, the Tribunal also has the discretion to waive all or part of Mr Murray’s debt in special circumstances. For the discretion to be exercised, all three conditions contained in subsections (a), (b), and (c) of section 1237AAD must be satisfied.
Knowingly
In order to waive part or all of the debt under section 1237AAD of the Act, the Tribunal must be satisfied that Mr Murray did not knowingly make a false representation to Centrelink or fail to comply with the relevant legislative provisions. The term ‘knowingly’ has not been defined in the Act, although it has been considered extensively by the Tribunal in similar circumstances.
In Callaghan and Secretary Department of Social Security, Re (1996] 45 ALD 435, Deputy President Forgie said at [445]:
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 that he or she is failing or admitting to comply with a provision of the Act. The 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 of omission.
In Anderson and Secretary, Department of Families and Community Services, Re (2002] 69 ALD 494, the Tribunal stated at [496]:
[…] it is open to the Tribunal to infer that the applicant has actual knowledge of his obligations under the act where there are opportunities for that knowledge to be gained when there are no obstacles to him acquiring knowledge. In this case, the applicant has had the opportunity to gain an understanding of his obligations under the Act to the provision of advice letters to him from the respondent. The Tribunal is not aware of any obstacles that would prevent Mr Anderson from understanding those letters and gaining that knowledge…
The Applicant accepts that the debt did not result from Mr Murray knowingly making a false statement/representation or failing or omitting to comply with the law.
The Applicant accepts that Mr Murray received carer payments for the period 11 December 2017 to 20 December 2017, as well as for the period 8 December 2018 to 20 August 2019 in good faith.
Mr Murray reiterated at the Tribunal hearing that under the Act he had complied with his statutory obligations and advised Centrelink, not once but five times during the reporting period, about the inheritance of a house and one off exempt lump sum, providing Centrelink with all documentation, emails, Certificate of Title and Will from the solicitors. Additionally, during the reporting period, as requested by the Centrelink Officer, he had completed the Module R Form about the house, and signed an Authority to inspect and value the house, so that the Centrelink could ensure he received the correct payment. Mr Murray’s justifiable grievance is that his debt has arisen because Centrelink failed to act upon the information, he had provided to them as and when required.
The Tribunal finds that Mr Murray provided Centrelink with all relevant information about the change in his finical circumstances following advice from Balfe Webb Solicitors on 22 December 2017 that they had finalised the estate transferring the property into Mr Murray’s name and deposited the cash into his bank account.
The Tribunal is completely satisfied that Mr Murray did not knowingly make a false representation to Centrelink or fail to comply with the relevant legislative provisions.
The Applicant accepts that Mr Murray received the carer payments for the period 11 December 2017 to 20 December 2017, as well as for the period 8 December 2018 to 20 August 2019, in good faith.
Mr Murray reiterated at the Tribunal hearing that the stigma of having his carer payment cancelled by Centrelink, a debt investigation, and the accusation that he had acted in bad faith when he had done everything he was required to do, not once but five times, during the reporting period will unjustly stay with him for the rest of my life.
Mr Murray was affronted at the suggestion he had committed fraud by taking the carer payment. He stated that for 24 years he has been providing constant care to his mother, who continues to suffer from multiple complex health issues; that he had at all times been open and honest with Centrelink about where he was living; and that he was completely unaware that Centrelink had not taken into account his assets and income from his inheritance, only becoming aware when he was advised his Concession Card was no longer valid after 27 December 2017 and he was no longer eligible for carer payment.
Mr Murray advised the Tribunal that following his visit to Centrelink on 4 January 2018 and completion of his Module R form, Centrelink issued a financial statement to his MyGov account advising he was no longer on maximum carer payment and then reduced his next payment. Mr Murray accepted that Centrelink had acted on the information he had provided and reduced his carer payment taking into account all of his assets including the property at Seaford.
Whilst the Tribunal acknowledges the Applicant has conceded Mr Murray received the payment in good faith, the Tribunal was taken aback by the ARO’s determination of 27 February 2020 that Mr Murray’s debt could not be waived as Mr Murray had not received the incorrect payments in good faith. The ARO acknowledged Centrelink’s error in not updating Mr Murray’s information correctly or in a timely manner. The ARO accepted this as an administrative error, as all the information had been provided by Mr Murray within the 14-day notification period. Despite that, the ARO found that it would have been reasonable for Mr Murray to expect a reduction in his rate of carer payment greater than $1.12 and his failure to query this with Centrelink indicated he had not accepted the payment in good faith. The Tribunal could clearly see why Mr Murray was affronted by the many statements from Centrelink in respect of his carer payment debt. The Tribunal accepts that, when surviving day-to-day on a social security benefit, any reduction in that benefit, regardless of how small, has an impact. Given Mr Murray had advised Centrelink of his changed financial circumstances, he accepted the reduction in his rate of payment in good faith.
The Tribunal was also perplexed by the Centrelink record of 17 August 2020, which determined a waiver of the debt was not appropriate as Mr Murray had failed to advise of correct value of his assets. As conceded by the applicant, and found by the Tribunal, Mr Murray had advised Centrelink of his inheritance within his reporting period but Centrelink had failed to code the information correctly.
The Tribunal was disturbed that Centrelink was attempting to shift the blame for its sole administrative error onto Mr Murray; and was not acting in good faith to resolve a situation of the agency’s making. The Tribunal again reiterated that Mr Murray had at all times complied with his obligations as a social security recipient.
The Tribunal is completely satisfied that Mr Murray received carer payments for the period 11 December 2017 to 20 August 2019 in good faith.
Special circumstances
The expression ‘special circumstances’ has not been defined in the Act. However, the meaning of special circumstances has been considered extensively by the Federal Court and the Tribunal.
In Ryde v Secretary Department of Family and Community Services [2005] FCA 886, Branson J said at [26]:
[…] the evident purpose of s 1237AAD is to enable a flexible response to the wide range of circumstances which could give rise to hardship or unfairness, the statutory requirement for special circumstances discloses an intention to proscribe waiver in ordinary cases. The hardship or unfairness to which French J referred must be understood to be hardship or unfairness sufficient to justify departure from the general rule in the particular case.
In Groth v Secretary Department of Social Security (1995) 40 ALD 541, Kiefel J said at [545]:
[…] for present purposes it is sufficient to observe that it requires something to distinguish Mr Groth’s case from others, to take it out of the usual ordinary case. That was, I consider, the only enquiry to be undertaken in this case. It would of course follow if one to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary…
In Beadle and Director – General of Social Security (1984) 6 ALD 1:
12. 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.
In Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1, 114, the Tribunal stated:
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…
The Applicant contends that Mr Murray’s circumstances are not sufficiently unusual, uncommon or exceptional so as to make his case markedly different from the ordinary cases or otherwise. The Applicant argued that, given Mr Murray’s cash inheritance and his Seaford property, he is in a far better financial position to repay the debt than most social security recipients.
The Applicant contended that whilst Mr Murray had advised the ARO and the Tribunal during the hearing that he had mental health issues he did not provide any corroborating evidence. The Applicant notes that for ill-health to be considered a special circumstance, it needs to be more severe than the majority of disability support pension recipients. The Applicant argued that Mr Murray’s ability to provide care for the care receiver would indicate that his ill-health is not severe enough to be special.
The Applicant also contended that administrative error was taken into account in the sole administrative waiver for the period 5 January 2018 to 7 December 2018 and should not be taken into account again in considering special circumstances waiver. Further, administrative error cannot constitute special circumstance on its own, and there is no evidence that Mr Murray’s other circumstances can be considered unusual or uncommon. Therefore, his debt cannot be waived under section 1237AAD of the Act.
The Tribunal, having considered all the evidence placed before it, finds that Mr Murray’s situation was not unusual, uncommon or exceptional, markedly different from the usual run of cases, special, or out of the ordinary to make it desirable to waive the portion of his debt not attributable to administrative error.
DECISION
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal finds that the Respondent had a debt to the Commonwealth for the period 5 January 2018 to 20 August 2019 as he had been over paid carer payment as his assets exceeded the asset value limit for non-homeowners.
The Tribunal determined that Mr Murray’s carer payment had been correctly cancelled on 5 January 2018 as his assets exceed the asset value limit for non-homeowners.
The Tribunal determines to waive the debt for the period 11 December 2017 to 20 December 2017 because of special circumstances.
The Tribunal determines to waive the debt for the period 5 January 2018 to 19 November 2018 because of sole administrative error.
The Tribunal determined that the remainder of the debt for the period 19 November 2019 to 20 August 2019 be waived because of sole administrative error.
The Tribunal sets aside the decisions under review and in substitution decides in accordance with the above findings and determinations.

I certify that the preceding 139 (one hundred and thirty-nine) paragraphs are a true copy of the written reasons for the decision herein of Ms A E Burke AO, Member

.......................[sgd].................................................
Associate
Dated: 5 July 2021

Date of hearing: 17 May 2021

Advocate for the Applicant: Aarabi Raveendiran

Solicitors for the Applicant: Services Australia

Respondent: In person

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2020/4561, 2020/4860
GENERAL DIVISION	)

Payment Type	Amount	Date Paid	Date of Grant
Carer Payment	$834.40	15 Nov 2018	2 May 1996
Energy Supplement	$14.10	15 Nov 2018	2 May 1996
Pension Supplement	$67.80	15 Nov 2018	2 May 1996

Payment Type	Amount	Date to be paid	Date of Grant
Carer Payment	$834.40	29 Nov 2018	2 May 1996
Energy Supplement	$14.10	29 Nov 2018	2 May 1996
Pension Supplement	$67.80	29 Nov 2018	2 May 1996

Date of hearing:	17 May 2021
Advocate for the Applicant:	Aarabi Raveendiran
Solicitors for the Applicant:	Services Australia
Respondent:	In person