O’Rance and Secretary, Department of Social Services (Social services second review)

O’Rance and Secretary, Department of Social Services (Social services second review) [2019] AATA 804 (7 May 2019)
Division:GENERAL DIVISION
File Number:2018/0483
Re:Michelle O’Rance
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:7 May 2019
Place:Brisbane

The Tribunal affirms the decision under review.
............................[SGD]..................................
Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – Austudy payment – overpayment – where no administrative error – where no special circumstances – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Ivovic and Director-General of Social Services (1981) 3 ALN N95
Secretary, Department of Social Security v Hales [1998] FCA 219
Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190

REASONS FOR DECISION
Member D Mitchell
7 May 2019
INTRODUCTION

Ms Michelle O’Rance (the Applicant) was in receipt of austudy payment from 24 March 2012 to 27 May 2012[1] and from 25 February 2013[2] until her payment was cancelled on 25 November 2013[3] because she was no longer a full-time student.[4]
[1]Exhibit 1, T Documents, T23, page 185, Centrelink mainframe screen captures.
[2] Exhibit 1, T Documents, T25, page 473, Centrelink letter to the Applicant dated 3 April 2013.
[3] Exhibit 1, T Documents, T25, page 502, Centrelink letter to the Applicant dated 25 November 2013.
[4]Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, paragraph 3.1, pages 2-3.
The Applicant was in receipt of newstart allowance from 10 December 2010 to 6 January 2011[5] and 28 May 2012 to 25 January 2013.[6]
[5] Exhibit 1, T Documents, T4, page 62, Debt Information – Debt ID: 98481218.
[6]Exhibit 1, T Documents, T6, page 64, Debt Information – Debt ID: 98481226.
On 21 December 2015, the Respondent sent the Applicant four notices advising her that she had legally recoverable austudy payment and newstart allowance debts.[7]
[7]Exhibit 1, T Documents, T8, pages 73-74, Centrelink Notice: Account Payable – Debt ID:98481218 Newstart Allowance – Period: 10.12.2010 – 06.06.2011 Amount: $649.75; T9, pages 75-76, Centrelink Notice: Account Payable – Debt ID: 98481220 Austudy – Period: 24.03.2012 – 27.05.2012 Amount: $798.98; T10, pages 77-78, Centrelink Notice: Account Payable – Debt ID:98481226 Newstart Allowance – Period: 28.05.2012 – 25.01.2013 Amount: $708.48; T11, pages 79-80, Centrelink Notice: Account Payable – Debt ID: 98477990 Austudy – Period: 25.02.2013 – 24.11.2013 Amount: $7,579.87.
On 27 June 2017, an authorised review officer (ARO) set aside the original decisions and recalculated the debts.[8]
[8]Exhibit 1, T Documents, T20, pages 160-167, Decision and notes of Authorised Review Officer.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD). On 9 January 2018, the SSCSD affirmed the decision in relation to the austudy payment debts and set aside and remitted the newstart allowance debt to the Respondent.[9]
[9]Exhibit 1, T Documents, T2, pages 5-11, Decision of the Social Security and Child Support Division.
Subsequently, the Applicant had two remaining austudy payment debts[10] being $268.88 for the period 24 March 2012 to 27 May 2012[11] and $7,232.56 for the period 25 February 2013 to 24 November 2013.[12]
[10]Transcript, page 5 – the Respondent confirmed that the newstart allowance debt remitted to the Department by the SSCSD was no longer in existence.
[11]Exhibit 1, T Documents, T20, page 163, Decision and notes of Authorised Review Officer.
[12]Exhibit 1, T Documents, T20, page 163, Decision and notes of Authorised Review Officer.
The Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application dated 26 January 2018.[13]
[13]Exhibit 1, T Documents, T1, pages 1-4, Application for Review.
On 4 July 2018, a Hearing was held for this application. At the Hearing, the Applicant appeared in person and gave evidence under affirmation.
On 5 April 2019, Executive Deputy President Dr P McDermott RFD reconstituted the Tribunal[14] so that the matter would be determined by Member Mitchell. On 10 April 2019, a Directions Hearing was held. The parties did not wish to make further submissions.
[14]Section 19D of the Administrative Appeals Tribunal Act 1975 (Cth).
The issue to be determined by the Tribunal is whether the Applicant has been paid more than the correct amount of austudy payment for the periods 24 March 2012 to 27 May 2012 and 25 February 2013 to 24 November 2013 and, if so, whether any excess payments are debts that are recoverable in part or in full.
BACKGROUND
On 21 December 2015, the Respondent sent the Applicant four notices advising her that she had legally recoverable austudy payment and newstart allowance debts.[15]
[15]Exhibit 1, T Documents, T8, pages 73-74, Centrelink Notice: Account Payable – Debt ID:98481218 Newstart Allowance – Period: 10.12.2010 – 06.06.2011 Amount: $649.75; T9, pages 75-76, Centrelink Notice: Account Payable – Debt ID: 98481220 Austudy – Period: 24.03.2012 – 27.05.2012 Amount: $798.98; T10, pages 77-78, Centrelink Notice: Account Payable – Debt ID:98481226 Newstart Allowance – Period: 28.05.2012 – 25.01.2013 Amount: $708.48; T11, pages 79-80, Centrelink Notice: Account Payable – Debt ID: 98477990 Austudy – Period: 25.02.2013 – 24.11.2013 Amount: $7,579.87.
The Applicant sought review of this decision and provided additional information in relation to her income during the relevant periods. On 27 June 2017, an ARO set aside the original decision and recalculated the debts.[16] The findings of fact set out by the ARO provide a clear overview of the matters before the Tribunal and provides:[17]
[16]Exhibit 1, T Documents, T20, pages 160-167, Decision and notes of Authorised Review Officer.
[17]Exhibit 1, T Documents, T20, pages 161-162, Decision and notes of Authorised Review Officer.
Findings of Fact
After careful consideration of the evidence, I have made these key findings:
·You were paid Newstart Allowance from 10 December 2010 to 27 February 2011.
·You were paid Austudy from 28 February 2011 to 18 August 2011.
·You were paid Austudy from 12 March 2012 to 27 May 2012.
·You were paid Newstart Allowance from 28 May 2012 to 25 January 2013.
·You were paid Austudy from 25 February 2013 to 24 November 2013.
·On 19 August 2010 the department sent you a letter which advised you that, amongst other things, you were required to advise within 14 days if you started work, or your income changed.
·You were a statement reporter from 10 December 2010 to 25 January 2013 which means you were required to report your income, and any changes in your circumstances, each fortnight before being paid.
·You were a notification reporter from 25 February 2013 when you were again granted Austudy which means you were required to notify the department of any changes to your income or circumstances within 14 days.
·A data-match with the ATO suggested you may have earned more income that [sic] what was declared to the department. The ATO advised the following details:
ofrom 1 July 2010 to 27 December 2010 you earned $17,688 from Tacticall Recruitment Services.
ofrom 18 April 2011 to 10 May 2011 you earned $500 from Workforce Action Pty Ltd.
ofrom 17 June 2011 to 30 June 2011 you earned $115 from Tavernetta Function Centre Pty Ltd.
ofrom 18 July 2011 to 4 May 2012 you earned $21,390 from Department of Transport and Main Roads (QLD Transport).
ofrom 5 May 2012 to 30 June 2012 you earned $577 from QLD Transport.
ofrom 1 July 2012 to 30 June 2012 you earned $194 from QLD Transport.
ofrom 16 July 2012 to 31 July 2012 you earned $1,725 from Toll Personnel.
ofrom 19 November 2012 to 30 June 2013 you earned $18,604 from Suncorp Staff.
ofrom 1 July 2013 to 9 January 2014 you earned $13,479 from Suncorp Staff.
·There is no debt for the periods where you worked for Workforce Action or Tavernetta Function Centre.
·You correctly declared income of $1,725 from Toll Personnel.
·You did not give the department full details of your earnings from employment with QLD Transport and Suncorp Staff.
·The income advised by the ATO was averaged across the periods of employment resulting in 4 overpayments of $649.75, $798.98, $708.48 and $7,579.87.
·On 27 February 2017 you provided payslips from Tacticall and Suncorp.
·On 27 February 2017 you also provided bank statements from Qantas Staff Credit Union which showed the net income received from QLD Transport.
·Your debts were recalculated on 9 June 2017 based on the payroll information provided and recalculated to be $385.27, $739.46, $1,594.28 and $7,163.25.
·You sought a review of this decision.
The ARO recalculated the Applicant’s debts to be:
·Newstart Allowance - $0 for the period 10 December 2010 to 6 January 2011 (Debt ID: 98481218)
·Austudy - $268.88 for the period 24 March 2012 to 27 May 2012 (Debt ID: 98481220)
·Newstart Allowance - $143.09 for the period 28 May 2012 to 25 January 2013 (Debt ID: 98481226)
·Austudy - $7,232.56 for the period 25 February 2013 to 24 November 2013 (Debt ID: 98477990)[18]
[18]Exhibit 1, T Documents, T20, page 163, Decision and notes of Authorised Review Officer.
The ARO found that these were debts owing to the Commonwealth, that they were not a result of sole administrative error, that the Applicant did not have special circumstances and that the debts must be repaid.[19]
[19]Exhibit 1, T Documents, T20, page 163, Decision and notes of Authorised Review Officer.
The Applicant sought review of that decision by the SSCSD. On 9 January 2018, the SSCSD affirmed the decision in relation to the austudy payment debts and set aside and remitted the newstart allowance debt to the Respondent.[20]
[20]Exhibit 1, T Documents, T2, pages 5-11, Decision of the Social Security and Child Support Division.
Subsequently, the Applicant had two remaining austudy payment debts[21] being $268.88 for the period 24 March 2012 to 27 May 2012[22] and $7,232.56 for the period 25 February 2013 to 24 November 2013.[23]
[21]Transcript page 5 – the Respondent confirmed that the newstart allowance debt remitted to the Department by the SSCSD was no longer in existence.
[22]Exhibit 1, T Documents, T20, page 163, Decision and notes of Authorised Review Officer.
[23]Exhibit 1, T Documents, T20, page 163, Decision and notes of Authorised Review Officer.
The relevant law in relation to the payment of austudy payment and recovery of debts to the Commonwealth is found in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act).
ISSUES
The issues for the Tribunal to consider are:
1.Whether, the Applicant has been paid more than the correct amount of austudy payment during the periods 24 March 2012 to 27 May 2012 and 25 February 2013 to 24 November 2013; and
2.If so, whether the excess payments are debts that are recoverable in part or in full?
CONSIDERATION
The Tribunal has before it in this matter:
·Exhibit 1 – section 37 T Documents (volume 1 pages 1-208, volume 2 pages 209-527)
·Exhibit 2 – Secretary’s Statement of Issues, Facts and Contentions dated 22 May 2018 (including attachments)
·Transcript of Proceedings – Hearing held on 4 July 2018
·Secretary’s Supplementary Submissions dated 11 July 2018 – requested to be provided after the hearing
Did the Applicant receive the correct amount of austudy payment during the periods 24 March 2012 to 27 May 2012 and 25 February 2013 to 24 November 2013?
Section 1067L of the Act sets out the rate at which austudy payment is calculated.
Section 1223(1) of the Act provides that if a person receives a payment that they were not entitled to for any reason 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.
The obligation is on the payment recipient to report any change of circumstances including any changes in their earnings. This is set out, in most cases, in letters sent by Centrelink pursuant to section 68(2) of the Administration Act.
Section 100 of the Administration Act provides that a person who is receiving a social security payment is given notice under section 68(2), requiring them to report a change of circumstances within a specified time. If a change occurs, but the person does not inform the Department, and the person’s rate of social security payment is reduced, the social security payment becomes payable to the person at the reduced rate on the day on which the change of circumstances occurred.
The Respondent contends that the Applicant failed to comply with the information notices issued to her under section 68(2) of the Administration Act. As such, her austudy payment rate is reduced under section 100(1) of the Administration Act.[24]
[24]Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, paragraphs 4.7-4.8, page 5.
The Respondent further contends that the Department has correctly calculated that the Applicant was overpaid austudy payment.[25] The Respondent notes the Applicant’s evidence given to the SSCSD that she was not disputing that an overpayment had occurred. Consequently, the Respondent submits that it is not in contention that the debts have been correctly raised.[26]
[25]Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, paragraph 5.1, page 6.
[26]Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, paragraph 5.2, page 6; Transcript, pages 9-10.
At the Hearing the Tribunal asked the Applicant whether she agreed with the debt calculations. The Applicant told the Tribunal she was not sure as the debts had changed a number of times. The Tribunal then requested that the Respondent provide a further submission outlining the debt calculation and provided the Applicant with an opportunity to advise the Tribunal if she disagreed with the calculation.[27] The Respondent provided further submissions in relation to the debt calculations on 11 July 2018.[28] The Applicant did not raise any concerns with the calculations.
[27]Transcript, pages 26-30.
[28]Secretary’s Supplementary Submissions dated 11 July 2018.
The Applicant did not raise any evidence to suggest that the debt calculations were incorrect.
Based on the evidence before the Tribunal I find that the Applicant received more austudy payment than she was entitled to during the periods 24 March 2012 to 27 May 2012 and 25 February 2013 to 24 November 2013. As such, the overpayments of $268.88 and $7,232.56 are austudy payment debts owed to the Commonwealth.
Are the austudy payment debts repayable in part or in full?
As I have found that the austudy payment debts exist, I must consider whether the debts must be repaid.
It is generally expected that debts to the Commonwealth are recovered. This proposition was expressed by French J in relation to debt recovery in Secretary, Department of Social Security v Hales [1998] FCA 219 as:
The taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to receive will be recovered, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the persons concerned.
However, there are circumstances where the recovery of debts is either put on hold for a period of time (written off) or are no longer pursued (waived). Relevant to the Applicant’s austudy payment debt, the Respondent may write off, or waive, her austudy payment debts if the requirements set out in sections 1236, 1237A or 1237AAD of the Act are met.
Should the Debts be written off pursuant to section 1236 of the Act?
Section 1236(1) of the Act provides that, subject to section 1236(1A), the Respondent may, on behalf of the Commonwealth, decide to write off a debt for a stated period or otherwise.
Section 1236(1A) of the Act allows the Respondent to decide to write off a debt only if:
(a)The debt is irrecoverable at law; or
(b)The debtor has no capacity to repay the debt; or
(c)The debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d)It is not cost effective for the Commonwealth to take action to recover the debt.
The Respondent contends that section 1236 of the Act has no application in the present matter as there is no evidence that the Applicant does not have capacity to repay the debt. The Respondent relied upon the evidence given by the Applicant to the SSCSD that she earns around $3,650.00 net per month and her partner’s new job paid around $50,000.00 per annum.[29]
[29]Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, paragraphs 5.6-5.7, page 7.
At the Hearing, the Applicant told the Tribunal that:[30]
·she was now unemployed.
·that she was working for Newscorp full-time, however left the job to pursue another opportunity. The Applicant told the Tribunal:
‘which was great and everything, but – sorry – I actually left Newscorp, because there was an opportunity to work with a start-up company in the music industry, which is something that I’m very passionate about – something that I work in on the side, quite a bit. It has been put on hold for a little bit, so at this point, I’m currently not working. Whilst I try and find something in the interim and the start-up getting on its feet …’
·It is a record label, so she is doing work with them, but it was currently unpaid and will likely be a commission based job which will not start earning her income until the end of the year (being the end of 2018).
·her being unemployed has put stress on her relationship with her partner and she does not want to, or could not use his money to repay her Centrelink debt.
[30]Transcript, pages 12-13.
There is no evidence before the Tribunal that the Applicant was not, at the time of the Hearing, receiving or entitled to receive newstart allowance or another appropriate social security payment. While it is clear that the Applicant’s circumstances changed between the SSCSD Hearing and the Hearing of this matter there is insufficient evidence before the Tribunal to corroborate that the Applicant does not have the capacity to repay the debt.
Based on the evidence before the Tribunal I am satisfied that the debt is recoverable at law, the Applicant has the capacity to repay the debt, her whereabouts are known and that there is no evidence to suggest it is not cost effective for the Commonwealth to take action to recover the debt. Consequently, I find that the Applicant’s austudy payment debts cannot be written off pursuant to section 1236 of the Act.
Should the Debts be waived due to sole administrative error pursuant to section 1237A of the Act?
Section 1237A of the Act provides that the Respondent must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.
In Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190 at paragraph [35] Selway, J stated:
The ordinary or usual interpretation of the phrase ‘attributable solely to’ is that it refers to the single or sole cause of the relevant act or event. The word ‘attributable’ means ‘capable of being attributed’. It involves an objective assessment of causation. The words ‘a debt attributable solely to an administrative error’ can be paraphrased as meaning that the only cause that objectively can be ascribed to the relevant debt is an administrative error.

The Respondent contends that there is no evidence of the debts raised being attributable solely to administrative error and, as such, they cannot be waived under section 1237A of the Act.[31]
[31]Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, paragraph 5.15, page 9.
The Applicant told the Tribunal at the Hearing that she received the money in good faith and that:
I do believe it is solely administrative error, especially when I can see in all the documents on page 304 – I just want to go by those really big numbers – I told Centrelink I earn $900 a fortnight when I was on Austudy in 2013. On 25 March 2013, I spoke to Maryborough apparently and yes, I earned – it says here:
Customer is not in hardship, as she states she is currently earning approximately $900 a fortnight.
So, I have told Centrelink that at the very beginning. This is back at the very, very beginning of that massive debt, which is my sole concern, because that’s, you know, the biggest one.
If I’ve told Centrelink that and it has been recorded and yet, even when I’ve said how much I’m earning, why was it still calculated incorrectly and why was it still continuing to be paid for me, even when they had all that information? How is that not administrative error?[32]
[32]Transcript, page 13.
The Applicant also told the Tribunal that she received letters and read them, and saw that she needed to notify Centrelink if her circumstances changed. She said she notified Centrelink when she moved, however, her job had not changed and her pay did not change.[33]
[33]Transcript, page 14.
The Applicant contends that she gave the right information about earning $900 a fortnight and that is ‘well above the $405 a fortnight that she was allowed to earn before her payments were cut off’, so the payments to her were calculated incorrectly and she received the money in good faith.[34]
[34] Transcript, page 27.
The Applicant gave an example of making enquires with Centrelink in 2008 or 2009 in relation to a scholarship fund payment, that she believed had been incorrectly paid. In that instance the Applicant told the Tribunal that when she called Centrelink to ask about the payment she was assured it was correct, however she kept the money aside and when a debt was raised 6 months later she paid the money back. The Applicant contended this showed that she would not take money if she did not think it was hers.[35]
[35] Transcript, page 17.
The evidence before the Tribunal shows that the Applicant was issued with a number of notices under subsection 68(2) of the Administration Act while receiving austudy payment. All of these notices indicated that she needed to either report her income regularly, or that should her income or circumstances change she must notify Centrelink within 14 days otherwise a debt may arise.[36] The Applicant acknowledged receiving these letters and reading them.
[36]Exhibit 1, T Documents, T25, Letters from Centrelink to the Applicant: pages 383- 389 dated 16 April 2012; pages 473-475 dated 3 April 2013 pages 476-477 dated 29 April 2013; pages 478-480 dated 3 May 2013; pages 484-486 dated 7 May 2013;, pages 495-496 dated 29 July 2013; pages 497-499 dated 26 August 2013.
The Applicant’s evidence and contentions relate only to the $7,232.56 debt for the period 25 February 2013 to 24 November 2013.
The Centrelink Customer Contact notes relating to the Applicant set out that she contacted Centrelink on 22 March 2013 seeking information in relation to making an austudy payment claim[37] and again on 25 March 2013 as she was having difficulties accessing online services and wanted to upload her academic transcripts.[38] The note dated 26 March 2013 that the Applicant referred to stated:
Rang cus & confirmed that academic transcripts have been received. Cus is not in hardship as she states she is currently earning approx. $900 p/f[39]
[37]Exhibit 1, T Documents, T24, page 303, Centrelink customer contact notes for the period: 10.12.2010 – 25.10.2017.
[38]Exhibit 1, T Documents, T24, page 304, Centrelink customer contact notes for the period: 10.12.2010 – 25.10.2017.
[39]Exhibit 1, T Documents, T24, page 304, Centrelink customer contact notes for the period: 10.12.2010 – 25.10.2017.
A further note dated 3 April 2013 provides that the Applicant was contacted in relation to her online claim for austudy payment and advised it had been granted.[40] The Applicant was sent a letter by Centrelink on the same day advising that she had been granted austudy payment from 25 February 2013. The letter also outlined that she could earn up to $405.00 a fortnight before her income affected her payments and that, if she earned less in a fortnight, she could accumulate up to $10,100 in an Income Bank.[41] The letter made no reference to Centrelink being aware of the Applicant’s current income. As outlined above the Applicant acknowledged reading this notice.
[40]Exhibit 1, T Documents, T24, page 306, Centrelink customer contact notes for the period: 10.12.2010 – 25.10.2017.
[41]Exhibit 1, T Documents, T25, pages 473-474, Centrelink letter to the Applicant dated 3 April 2013.
The granting of Centrelink payments is based on the information provided by the person in their claim for payment. As such it is not clear that the conversation on 26 March 2013 which referred to the Applicant’s earnings were considered to be part of her application for austudy payment. Rather, they may have been in response to Centrelink making enquires as to whether the Applicant was in financial difficulty while waiting for her application to be assessed and finalised.
While the Applicant is relying on the conversation she had with Centrelink on 26 March 2013 as satisfying her income reporting obligations, she lodged her actual claim for austudy payment online separately to this conversation. There is no evidence before the Tribunal that the Applicant had specifically intended or asked for the disclosure of her income during that call to constitute part of her claim for austudy payment.
Further, the Applicant acknowledges that she earned more than $405 per fortnight and that her payment had been incorrectly calculated, but that she believed she had at the time received what she was entitled to. This argument is difficult to accept as the Applicant had received austudy payment previously, with the most recent time being in 2012. She also indicated that she had in the past questioned Centrelink payments she had received. However, in this instance she was receiving in 2013 a higher rate of austudy payment than the rate she previously received in 2012, despite her increased income. In this instance, it would have been reasonable for the Applicant to question her rate of payment.
There is no evidence before the Tribunal to suggest that the austudy payment debt of $268.88 for the period 24 March 2012 to 27 May 2013 was the result of sole administrative error.
Based on the evidence before the Tribunal, I am not satisfied that the Applicant’s austudy payment debt of $7,232.56 for the period 25 February 2013 to 24 November 2013 was the result of a sole administrative error.
Consequently, I find that the Applicant’s austudy payment debts cannot be waived pursuant to section 1237A of the Act.
Should the Debt be waived due to special circumstances pursuant to section 1237AAD of the Act?
Section 1237AAD of the Act provides that the Respondent may waive the right to recover all or part of a 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 Act does not provide a definition of special circumstances. However, the general proposition, established by relevant Federal Court decisions, make it clear that ‘special’ means something different from the usual or ordinary.[42]
[42]Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541, at 545per Kiefel J; Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones (2012) 89 ATR 267; [2012] FCA 639, at [51]; Boscolo v Secretary, Department of Social Security[1999] FCA 106; (1999) 90 FCR 531, at [18]; Barker J in Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[2010] FCA 1084, at [37].
In Re Beadle and Director-General of Social Security (1984) 6 ALD 1 the Tribunal held at paragraph 3:
An expression such as “special circumstances” is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to 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 Re Ivovic and Director-General of Social Services (1981) 3 ALN N95, the Tribunal stated:
Whilst it would be unwise, if not impossible, to attempt to lay down any precise delineation of what may amount to “special circumstances” …., the use of the word “special” is, we think, intended to allow the decision-maker the fullest opportunity to consider the particular circumstances of each case … In the exercise of the discretion …., the decision-maker must have regard to whether, by exercising the discretion in a particular case, he will be achieving or frustrating ends or objects which are conformable with the scope and purpose of the …. Act.
The Respondent contends that the Applicant has not advised of any special circumstances, other than financial hardship alone, nor are the Applicant’s circumstances unusual or uncommon to an extent which would make it desirable to waive recovery of the debts.[43]
[43]Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, paragraphs 5.19 and 5.21, page 10.
Based on the evidence outlined above, I do not consider that the Applicant’s austudy payment debts are the result of false or misleading statements made by the Applicant or that the Applicant knowingly failed to comply with the notices issued under the Administration Act.
At Hearing, the Applicant told the Tribunal that she does have special circumstances. She told the Tribunal that she had to get a mental health plan from a doctor. She added, however, that she has been unable to see anyone as she cannot afford to.[44] She also outlined her financial situation as it was at that time, the details of which are set out in paragraph 35 above.
[44]Transcript, page 12.
The Applicant did not provide the Tribunal with any corroborating evidence in relation to her ill health or in relation to her current financial situation.
There is no evidence before the Tribunal that the Applicant was not, at the time of the Hearing, receiving or entitled to receive newstart allowance or another appropriate social security payment. Further, the Applicant gave evidence that she had chosen to leave her position at Newscorp to pursue another position. While it is clear that the Applicant’s circumstances changed between the SSCSD Hearing and the hearing of this matter there is insufficient evidence before the Tribunal to corroborate that the Applicant’s financial situation is of a kind that would make it usual or uncommon.
Based on the evidence before the Tribunal, in particular that given by the Applicant at the Hearing, I do not consider that the Applicant’s circumstances are sufficiently special or unusual to warrant the exercise of the discretion in section 1237AAD of the Act to waive the austudy payment debts. Consequently, I find that the Applicant’s austudy payment debts cannot be waived pursuant to section 1237AAD of the Act.
CONCLUSION
I find that the:
(a)Applicant was paid more than the correct amount of austudy payment during the period 24 March 2012 to 27 May 2012;
(b)Applicant’s austudy payment debt for the period 24 May 2012 to 27 May 2012 is correctly calculated as $268.88 and is a debt owed to the Commonwealth;
(c)Applicant was paid more than the correct amount of austudy payment during the period 25 February 2013 to 24 November 2013;
(d)Applicant’s austudy payment debt for the period 25 February 2013 to 24 November 2013 is correctly calculated as $7,232.56 and is a debt owed to the Commonwealth;
(e)requirements of sections 1236, 1237A and 1237AAD of the Act are not met; and
(f)Applicant’s austudy payment debts are recoverable in full.
Accordingly, the decision under review is affirmed.

I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

............................. [SGD]...................................
Associate
Dated: 7 May 2019

Date of hearing: 4 July 2018

Applicant: In Person

Advocate for the Respondent: Mr Jake Kyranis

Solicitors for the Respondent: Sparke Helmore Lawyers

[2019] AATA 804

7 May 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Remedies

Statutory Construction

Standing

Date of hearing:	4 July 2018
Applicant:	In Person
Advocate for the Respondent:	Mr Jake Kyranis
Solicitors for the Respondent:	Sparke Helmore Lawyers