O'Hara and Secretary, Department of Social Services (Social services second review)

This matter concerned an appeal by O'Hara against a decision of the Secretary of the Department of Social Services (DSS) to affirm a determination that an overpayment of Newstart Allowance had occurred. The Administrative Appeals Tribunal (AAT) was required to consider whether there were special circumstances that would justify the waiver of the debt.

The primary legal issue before the AAT was whether O'Hara's circumstances constituted "special circumstances" within the meaning of the relevant social security legislation, such that the recovery of the Newstart Allowance overpayment should be waived. This required an assessment of whether O'Hara was not at fault for the overpayment and whether recovery would cause severe hardship.

The AAT found that O'Hara had been absent from Australia for a period during which she received Newstart Allowance. The Tribunal determined that there was no administrative error on the part of the DSS that contributed to the overpayment. Consequently, the AAT concluded that O'Hara was at fault for the overpayment, as she had failed to notify the DSS of her overseas travel. As O'Hara was found to be at fault, the question of severe hardship became irrelevant to the determination of special circumstances. The decision of the Secretary was therefore affirmed.