Oberhardt and Anor; Secretary, Department of Employment and Workplace Relations and Anor and
[2008] AATA 85
•1 February 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 85
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200600593
GENERAL ADMINISTRATIVE DIVISION ) Re Secretary, Department of
Employment and Workplace
RelationsApplicant
And
Tracey Oberhardt
Respondent
ADMINISTRATIVE APPEALS TRIBUNAL )
) Q 200600868
GENERAL ADMINISTRATIVE DIVISION ) Re Tracey Oberhardt Applicant
And
Secretary, Department of Families, Housing, Community Services & Indigenous Affairs
Respondent
DECISION
Tribunal Mr SC Fisher, Member Date1 February 2008
PlaceBrisbane
Decision 1. The Tribunal decides in appeal Q 2006/593 that the decision of the Social Security Appeals Tribunal dated 1 August 2006 to waive the right of the Commonwealth to recover parenting payment debt of $3,261.39 should be set aside and in place of that decision this Tribunal decides that the Commonwealth is entitled to recover the sum of $3,261.39 as a parenting payment debt.
2. The Tribunal decides in appeal Q 2006/868 to affirm the decision that the Commonwealth is entitled to recover a family tax benefit debt of $1,533.84..................[Sgd]......................
DISTRICT REGISTRAR
CATCHWORDS
SOCIAL SECURITY – parenting payment (partnered) – partner’s income not reported immediately to Centrelink – whether overpayment was a sole administrative error – whether debt can be waived – whether special circumstances exist – no special circumstances – waiver of debt set aside and substituted that there be no waiver of debt
SOCIAL SECURITY – family tax benefit – overpayment – waiver of debt – no special circumstances – decision not to waive debt affirmed
Social Security (Administration) Act 1999 (Cth) Part 4, Division 5
Social Security Act 1991 (Cth) ss 500, 1184K, 1223, 1237AAC, 1237AAD
Administrative Appeals Tribunal Act 1975 (Cth) ss 37, 43
A New Tax System (Family Assistance) Act 1999 (Cth) s 29
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) s 101
Federal Court Rules Order 52, r 15Social Security Legislation Amendment (Carer Pension and Other Measures) Bill 1995
Secretary, Department of Social Security v Murphy [1998] FCA 809
Ajka Pty Ltd v Australian Fisheries Management Authority (2003) 74 ALD 21
Bantick and Secretary, Department of Family and Community Services [2003] AATA 472
Bramwell v Repatriation Commission (1998) 51 ALD 56
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598
Secretary, Department of Social Security v Hales (1998) 82 FCR 154
Secretary, Department of Employment and Workplace Relations v Homewood (2006) 91 ALD 103
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Beadle v Director-General of Social Security (1985) 60 ALR 225Green and Secretary, Department of Social Security (1990) 21 ALD 772
Re Ivovic and Director-General of Social Services (1981) 3 ALN N95
Krzywak and Secretary, Department of Social Security (1988) 15 ALD 690
Trimboli v Secretary, Department of Social Security (1989) 86 ALR 64
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Dranichnikov v Centrelink (2003) 75 ALD 134
Ryde v Secretary, Department of Family and Community Services [2005] FCA 866
Haidar v Secretary, Department of Social Security (1998) 52 ALD 255
Kertland v Secretary, Department of Family and Community Services (1999) 95 FCR 64
Secretary, Department of Family and Community Services and Danielsen-Jensen (2004) 86 ALD 790
Secretary, Department of Family and Community Services and SRKKKK (2005) 86 ALD 396
Ubachs v Secretary of the Department of Family and Community Services [2004] FCA 310
Jazazievska v Secretary, Department of Family and Community Services (2000) 65 ALD 424
Secretary, Department of Employment and Workplace Relations and Carabott (2006) 89 ALD 726
McAliney and Secretary, Department of Family and Community Services (2005) 83 ALD 316
Strang and Secretary, Department of Employment and Workplace Relations [2006] AATA 51
Re Schulze and Secretary, Department of Family and Community Services (2004) 81 ALD 636
Re Secretary, Department of Family and Community Services and Varhegyi (2005) 87 ALD 717
Sara and Secretary, Department of Families, Community Services and Indigenous Affairs (2006) 91 ALD 759
Re Ganchov and Comcare (1990) 19 ALD 541
Public Trustee as Legal Representative of David Arthur Jackson (Deceased) and Repatriation Commission [2001] AATA 63
Re Legal Personal Representative of Anthony Wodianicky and Repatriation Commission [2006] AATA 495
Secretary, Department of Employment and Workplace Relations and Sandra Clark and John Bambrick (Party Joined) [2007] AATA 1750
DSGR and Secretary, Department of Education, Science and Technology [2007] AATA 1981
Re Huynh and Secretary, Department of Social Security (1994) 34 ALD 694
Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25REASONS FOR DECISION
1 February 2008 Mr SC Fisher, Member Introduction and background
1. Ms Tracey Oberhardt ("the Applicant") has been in receipt of parenting payment paid to her by the Secretary, Department of Employment and Workplace Relations and family tax benefit paid to her by the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (who will be referred to as "Centrelink" interchangeably with the "Respondent" in these Reasons for Decision).
2. The Applicant has been overpaid $3,261.39 by way of parenting payment and overpaid family tax benefit of $1,533.84. For both overpayments: the debt period is 11 February 2005 to 30 May 2005. Centrelink began its internal measures to recover these sums in mid-2005.
3. After internal review within Centrelink, the Applicant appealed her debt recovery decisions to the Social Security Appeals Tribunal. On 1 August 2006, the Social Security Appeals Tribunal decided to waive Centrelink's right to recover the parenting payment debt but decided to affirm recovery of the family tax benefit debt.
4. Centrelink has appealed the waiver of the parenting payment debt to this Tribunal. The Applicant has appealed the recovery of the family tax debt to this Tribunal. Both appeals were heard together.
Jurisdiction
5. In a procedural sense, the Tribunal has jurisdiction in this appeal by virtue of Part 4, Division 5 of the Social Security (Administration) Act 1999 (“the Administration Act”). In a substantive sense, the merits of this appeal are governed by the Social Security Act 1991 (“the Social Security Act”) and the A New Tax System (Family Assistance) Act 1999 ("The Families Assistance Act") and the A New Tax System (Family Assistance) (Administration) Act 1999 ("The Family's Assistance Administration Act").
The Decision under Review
6. The decision under review is a decision made by the Social Security Appeals Tribunal on 1 August 2006 that Centrelink was entitled to raise and recover a parenting payment debt in relation to the Applicant in the amount of $3,261.39 and a family tax benefit debt of $1,533.84 over the period is 11 February 2005 to 30 May 2005.
The Role of the Tribunal
7. The role of the Tribunal is to review the merits of the decision before it: section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy [1998] FCA 809. The Tribunal is guided by the norm that it should reach the “correct and preferable decision on the basis of the material before it”: Ajka Pty Ltd v Australian Fisheries Management Authority (2003) 74 ALD 21 at 31. “The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent”: Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23]. The Tribunal proceeds de novo: Bramwell v Repatriation Commission (1998) 51 ALD 56 at 60 per Weinberg J. The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigration and Ethnic Affairs(1981) 36 ALR 598 at 601.
The Material Before the Tribunal
8. The following documentary evidence was before the Tribunal:
Exhibit 1 Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (documents T1 – T27) (appeal Q 2006/593).
Exhibit 2Further Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (documents F1 – F5) (appeal Q 2006/593).
Exhibit 3Additional miscellaneous documents (bundled 19 February 2007).
Exhibit 4Supplementary Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (documents S1 – S13) (appeal Q 2006/868).
Exhibit 5Centrelink screen dumps forming Attachment 1 and 2 to the Secretaries’ Statement of Facts and Contentions
Exhibit 6Statement of Tracey Oberhardt (dated 17 December 2006).
Exhibit 7Report from Peter Perros, psychologist, dated 17 March 2007.
9.The Applicant was represented by Mr P Cousins from Legal Aid Queensland. Written submissions were made on behalf of the Applicant.
10. The Respondent was represented by Mr Matthew Black, a departmental advocate. The Respondent’s advocate provided a Statement of Facts and Contentions to the Tribunal.
11. The Tribunal carefully considered all of the documentary and oral evidence before it.
Evidence
12. The Applicant gave evidence on her own behalf, and so did Mr Peter Perros, Psychologist. The Respondent did not call any evidence.
Issues
13.The issues in this case are two-fold:
A. Whether an admitted overpayment of parenting payment of $3,261.39 spanning the period 11 February 2005 to 30 May 2005 should be waived under section 1237AAD of the Social Security Act 1991.
B. Whether an admitted overpayment of family tax benefit of $1,533.84 spanning the period 11 February 2005 to 30 May 2005 should be waived under section 101 of the A New Tax System (Family Assistance) (Administration) Act 1999.
14.The Applicant accepted that there was a debt from two overpayments and that the debts have been calculated properly.
Discussion of the Evidence
15. The Tribunal noted there was no dispute about some of the primary facts which have taken place in this case.
16. The Tribunal accepted the Applicant as a truthful witness.
Findings of Fact
17. Based upon the evidence before it, the Tribunal makes the following findings of fact:
A. The Applicant was overpaid parenting payment of $3,261.39 from 11 February 2005 to 30 May 2005.
B. The Applicant was overpaid family tax benefit of $1,533.84 from 11 February 2005 to 30 May 2005.
C. The cause of the overpayment was the failure of the Applicant to notify Centrelink that she no longer had the care of a child under the age of 18 on and from 11 February 2005 and also because she cared for her child 24% of the time instead of 6% of the time.
D. The Applicant was very upset with her former partner about their child not coming back to live with her after 11 February 2005, and the Applicant had difficulty thinking clearly because of the emotional distress she was suffering from after 11 February 2005.
E. The Applicant's neuropsychological functioning would have been far more impaired prior to the insertion of an initial shunt, and such impaired neuropsychological functioning was present in February 2005.
F. The Applicant was in contact with Centrelink about a possible referral to the Commonwealth Rehabilitation Service in February 2005.
G. On 24 March 2005, the Applicant telephoned Centrelink making enquiries about claiming disability support pension. The Applicant did not notify Centrelink of any changes relating to the care of her son during that contact phone call.
H. Between late March and late June 2005, the Applicant and Centrelink were in contact with each other about vocational rehabilitation and assistance which Centrelink could provide the Applicant.
I. Centrelink advised the Applicant in writing on or about 20 April 2005 that she was required to advise Centrelink if her child left home.
J. The only assets of the Applicant are an unstated amount of household furniture and contents and her motor vehicle worth between $7,000 – $8,000.
K. The Applicant had an ANZ Consumer Finance debt of $4,886.84.
L. The Applicant owes her dentist the sum of $230.35.
M. The Applicant owes TAFE $785.25.
N. The Applicant owes St George Finance $4,220.42 by way of finance for a motor vehicle.
The Legislation
18. The central issue in these appeals governs the recoverability of admitted overpayments of parenting payment and family tax benefit.
19. Section 500 of the Social Security Act governs the qualification of a person for parenting payment. Section 59 of the Families Assistance Act regulates the qualification of the person for family tax benefit. It is not necessary to set out the text of these provisions in this decision.
20. Section 1237AAD of the Social Security Act (applicable to the parenting payment overpayment and debt) provides for waiver of debts on the basis of special circumstances.
21. Section 1237AAD reads:
“The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a)the debt did not result wholly or partly from the debtor or another person knowingly:
(i)making a false statement or a false representation; or
(ii)failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c)it is more appropriate to waive than to write off the debt or part of the debt.”
22. Section 101 of the Families Assistance Act is almost identical to section 1237AAD.
Tribunal’s Reasons
23. The relevant legislative provisions have been referred to above.
24. A starting premise, according to the Federal Court in Secretary, Department of Social Security v Hales (1998) 82 FCR 154 at 155, is that if there is an overpayment of income support payments, taxpayers are entitled to expect that in the ordinary course those sort of payments will be recovered, and that is, of course, what the respondent did in this case, but recovery is not automatic. Whilst it is not automatic, certainly there are exceptions to it, and the main exception concerning income support payments has to do with waiver.
25. There was no contest in this case that the Applicant had been overpaid parenting payment and that there was a debt within section 1223 of the Social Security Act. Similarly, the parties were not in dispute that the Applicant had been overpaid family tax benefit.
26. The central issue in these appeals concerns the waiver of the parenting payment debt and the family tax benefit debt raised by the Respondent against the Applicant on the basis of the special circumstances waiver within section 1237AAD of the Social Security Act and section 101 of the Families Assistance Administration Act (the text of which has been reproduced earlier or referred to earlier in these Reasons for Decision).
27. There are three elements within section 1237AAD (and for that matter, within section 101), which is a discretionary provision, and as the Federal Court said in Secretary, Department of Social Security v Hales (1998) 82 FCR 154 at 162 “That discretion is only enlivened when the Secretary is satisfied that the three conditions specified in paragraphs (a), (b) and (c) of the section are met.”
28. It was not argued by Centrelink that paragraphs (a) and (c) were not met by the Applicant. This left only paragraph (b) (dealing with special circumstances).
29. Whether any particular set of circumstances attracts the epithet "special" is a question of fact (see Secretary, Department of Employment and Workplace Relations v Homewood (2006) 91 ALD 103 at 110). "Special circumstances" is used within income support law at various points in which to cushion or temper the exercise of a discretion relating to a power or liability in order to signify or demarcate a particular threshold of circumstances applicable to income support recipients where the adjudication of a decision must take place. "Special circumstances" is also deployed in debt waiver provisions such as section 1237AAD of the Social Security Act and section 101 of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (compare Order 52 r 15(2) of the Federal Court Rules which uses the cognate expression “special reasons”).
30. In Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3 it was said that "...‘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." In the appeal [Beadle v Director-General of Social Security (1985) 60 ALR 225 at 228], it was said that "...special circumstances must include events which would render [a happening or eventuality]... unfair or inappropriate... We do not think it is possible to lay down precise limits or precise rules... The phrase ‘special circumstances’, although lacking precision, is sufficiently understood in our view not to require judicial gloss".
31. In Green and Secretary, Department of Social Security (1990) 21 ALD 772, this Tribunal collected a series of factors that it thought provided guidance concerning the exercise of the discretion conditioned upon the predicate of "special circumstances" in what is now Section 1184K of the Social Security Act. The Tribunal said:
“In Re Ivovic and Director-General of Social Services (1981) 3 ALN N95 the Tribunal identified a number of principles which could be applied in deciding whether special circumstances existed to warrant the exercise of the discretion contained in s 156 of the Act. In that decision, which concerned the liability of the Applicant to repay an amount of sickness benefit paid to him, the Tribunal commented at N97.
§The use of the word "special" is "intended to allow the decision-maker the fullest opportunity to consider the particular circumstances of each case";
§"Hardship is a relevant consideration" but regard must be had to the way in which the hardship arose;
§There must exist "factors which justify the making of an exception in whole or in part to the principle of liability which the Act otherwise establishes";
§The decision-maker must have regard to whether, by exercising the discretion in a particular case he/she will be "achieving or frustrating ends or objects which are comfortable with the scope and purpose of the Social Security Act"; and
§"The decision-maker must be prepared to respond to special circumstances of any particular case by reason of which strict enforcement of the liability created by the section would be unjust, unreasonable or otherwise inappropriate."
32. The principles set out in Ivovic were approved by the Administrative Appeals Tribunal in Krzywak and Secretary, Department of Social Security (1988) 15 ALD 690 which has been followed generally by the Tribunal.
33. The Federal Court of Australia said in Trimboli v Secretary, Department of Social Security(1989) 86 ALR 64 at 73:
“[The] discretion which is extremely broad and which is not to be confined, save in accordance with usual principles, namely, that it is to be exercised bona fide and for the purposes for which the discretion is conferred, such purposes being determined by reference to the policy and purpose of the Social Security Act: cf Giris Pty Ltd v FCT (1969) 119 CLR 365 at 384.”
34. Later in Groth v Secretary, Department of Social Security (1995) 40 ALD 541 it was stated at 545:
"...[Special circumstances] would require something to distinguish... [the] case from others, to take it out of the usual or ordinary case ... It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary".
35. In Dranichnikov v Centrelink (2003) 75 ALD 134, the Federal Court held at 148 that for a finding of special circumstances to be made (or for “special reasons” to exist):
"...what is required will be circumstances which distinguish the case in consideration from the usual case. There will be a requirement that the circumstances are such that takes the case out of the ordinary..."
36. In Dranichnikov v Centrelink (2003) 75 ALD 134 at 148, Hill J (Kiefel & Hely JJ concurring) said the following concerning the unusual, uncommon or exceptional gloss:
“The Full Court in Beadle comprising Bowen CJ, Fisher and Lockhart JJ, however, was of the view that it was not possible to lay down precise rules as to what constituted special circumstances under the then s 102(1)(a) of the Social Security Act 1947 (Cth). Their Honours point out that the question whether there were special circumstances was one for the decision-maker (in that case the Director-General) bearing in mind the purpose for which the power was given. The reference to the first instance decision from which the words “unusual, uncommon or exceptional” come was not actually affirmed by the Full Court.”
37. A similar observation was made by Branson J in Ryde v Secretary, Department of Family and Community Services [2005] FCA 866 at [25]. The Dranichnikov approach seems to represent a retreat from the position Hill J took in Haidar v Secretary, Department of Social Security (1998) 52 ALD 255 (see also Kertland v Secretary, Department of Family and Community Services (1999) 95 FCR 64).
38. The explanation of the “unusual, uncommon or exceptional” trilogy made by the Full Court of the Federal Court in Dranichnikov v Centrelink does not appear to have affected or limited the use of this particular trilogy by this Tribunal (see for example, Secretary, Department of Family and Community Services and Danielsen-Jensen (2004) 86 ALD 790 and Secretary, Department of Family and Community Services and SRKKKK (2005) 86 ALD 396) and by the Federal Court (see Ubachs v Secretary of the Department of Family and Community Services [2004] FCA 310 and Jazazievska v Secretary, Department of Family and Community Services (2000) 65 ALD 424). The Groth formula (which has also enjoyed wide citation in income support law: see Secretary, Department of Employment and Workplace Relations and Carabott (2006) 89 ALD 726; McAliney and Secretary, Department of Family and Community Services (2005) 83 ALD 316 and Strang and Secretary, Department of Employment and Workplace Relations [2006] AATA 51), with respect, should also be seen as an attempt to paraphrase "special circumstances". This Tribunal is of the view that these paraphrases cannot supplant the statutory language, while at the same time recognising that these paraphrases elucidate the meaning of the statutory language.
39. The clear thrust of some of the authorities discussed above (see in particular Dranichnikov v Centrelink (2003) 75 ALD 134 and Ryde v Secretary, Department of Family and Community Services [2005] FCA 866) is that "special circumstances" should not be interpreted according to synonyms (and in particular not confined by these). The Tribunal considers that the clear and ordinary meaning of the words "special circumstances" is the meaning that should be assigned to them. The Tribunal also reasons that it is important not to approach "special circumstances" against an a priori set of established factual circumstances or recurring factual patterns which have been recognised in the authorities as supporting or generating special circumstances, or which in fact exclude special circumstances (compare Dranichnikov v Centrelink (2003) 75 ALD 134 at 148 and Green and Secretary, Department of Social Security (1990) 21 ALD 772). Accordingly, for any adjudicator to state or conclude that special circumstances precludes the exercise of a power and discretion under relevant provisions of the income security law simply because the circumstances of an income support recipient are commonplace, is to misconceive and misapply the provision.
40. The Applicant argued that because she qualified for disability support pension, which was backdated, the overpayments of parenting payment and family tax benefit should be offset by the notional entitlement to disability support pension under special circumstances waiver .
41. The Applicant argued that the authorities cited by Centrelink in opposition to the importation of the notional entitlement concept into special circumstances waiver (principally Re Schulze and Secretary, Department of Family and Community Services (2004) 81 ALD 636; Re Secretary, Department of Family and Community Services and Varhegyi (2005) 87 ALD 717) were inconsistent with special circumstances waiver under the two statutes under consideration on the basis that the statute did not explicitly exclude notional entitlements as part of the mechanism or methodology germane to special circumstances waiver.
42. The Applicant cited Sara and Secretary, Department of Families, Community Services and Indigenous Affairs (2006) 91 ALD 759 at [30] in support of the contention that Schulze and Varhegyi did not exclude the notional entitlement offset being deployed in special circumstances waiver because as was said by Member Carstairs in Sara the terms of the statutory special circumstances waiver in being couched as a discretion were unfettered except by the integers present in the waiver provision itself.
43. In opposition to the notional entitlements argument, Centrelink urged this Tribunal to follow its earlier decisions because of the desirability of the operation and adherence to the norm of the consistency of administrative decision-making (Re Ganchov and Comcare (1990) 19 ALD 541 at 542; Public Trustee as Legal Representative of David Arthur Jackson (Deceased) and Repatriation Commission [2001] AATA 63 and Re Legal Personal Representative of Anthony Wodianicky and Repatriation Commission [2006] AATA 495).
44.In Secretary, Department of Employment and Workplace Relations and Sandra Clark and John Bambrick (Party Joined) [2007] AATA 1750, Senior Member Cunningham said:
“This approach [excluding notional entitlement] was recently followed in Field and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 471 and SDEWR and Prahara [2006] AATA 719 where the Tribunal said, inter alia, at para 12:
"The SSAT found the applicant had a notional entitlement to Newstart and took into account that entitlement when discussing special circumstances. The SSAT said that the applicant would probably have received Newstart in any event, even though he was not entitled to parenting payment so there has been no net loss to the Commonwealth. That conclusion is at odds with other decisions of this Tribunal, most obviously Schulze and SDFaCS (2004) and Varhegyi (2005). Those decisions make it clear "there is no room to introduce a concept of notional entitlement" into the expression special circumstances: Varhegyi at paragraph 37 per DP Forgie"
45. In DSGR and Secretary, Department of Education, Science and Technology [2007] AATA 1981, Senior Member Handley said (after noting the principal authorities on point identified above as well as Re Huynh and Secretary, Department of Social Security(1994) 34 ALD 694):
“From my part, whilst I would not exclude the possibility of the circumstances of a person being so special that set off by notional entitlement could never be permitted, I would think that those circumstances would be unusual and set off by notional entitlement would be a relatively uncommon occurrence.”
46. The Tribunal noted that a notional entitlement concept appears in section 1237AAC. This concept is conspicuously absent from other debt waiver provisions under both statutes under consideration. One argument is that had the Commonwealth Parliament intended a notional entitlement concept to be invoked in the relevant income support debt waiver or debt reduction contexts under sections 101 and 1237AAD, it could easily have done so. As a counter foil, it could be said that parliamentary recognition of a notional entitlement specific to section 1237AAC is not intended to exclude it from operating in the context of other debt waiver provisions. The Applicant argued much along this line.
47. The Explanatory Memorandum accompanying the Social Security Legislation Amendment (Carer Pension and Other Measures) Bill 1995 (provided by Centrelink to the Tribunal after the hearing) does not discuss never mind elucidate why notional entitlement was not included in (or in a fashion, carved out) of section 1237AAD.
48. For its part, this Tribunal considered that a notional entitlement basis for special circumstances waiver in income support law stands also outside the legislative signpost in section 1237AAD. It is also outside of the preponderance of authority. If the notional entitlement concept applies in section 1237AAD (which is doubtful), then it must itself come under the rubric of the range of accepted integers of special circumstances.
49. Putting the matter at its most favourable to the Applicant, should this Tribunal apply a notional entitlement to disability support pension on the part of the Applicant and in her favour as a ground for reducing or waving the debt on the basis of special circumstances? Effectively, the argument for the Applicant is that because of her medical conditions which were extant in February 2005, she would have qualified for disability support pension earlier and so being in a position to avoid having qualified for and being paid parenting payment. In the opinion of this Tribunal, the notional entitlement of the Applicant to disability support pension is not sufficiently unusual, uncommon or exceptional as to justify special circumstances waiver. This Tribunal rejects the argument for the Applicant that because section 1237AAD was unaltered when its companion provisions section 1237AAC introduced a notional entitlement criterion, it follows that notional entitlement is a special circumstance under section 1237AAD. Respectfully, this does not follow from the premise. The Tribunal went on to consider the other circumstances of this case under the framework of special circumstances waiver.
50. In Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25 at [33]. Besanko J emphasised the importance of maintaining flexibility about the special circumstances criterion:
“I also note that the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances. The danger is that the test will be overstated if the word ‘exceptional’ is emphasised. It was not the intention of Parliament to confine the exercise of the discretion to an exceptional case. There is less risk of overstatement if the words ‘unusual’ or ‘uncommon’ are emphasised. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case. It may not be easy to postulate the ordinary or usual case other than in quite general terms and, in doing so, close attention must be given to the particular statutory context.”
51. The Tribunal took into account the following circumstances and factors as disclosed by the evidence before the Tribunal:
A. The circumstances affecting the Applicant identified at paragraph 17 of these Reasons for Decision.
B. The Applicant experienced neuropsychological malfunctioning in early 2005.
C. The Applicant was able to negotiate and liaise with Centrelink between February and June 2005 relating to rehabilitation.
D. The Applicant struggles financially.
E. The Applicant was not on the receiving end of some maladministration on the part of Centrelink.
52. Having regard to these matters, and to the policy that special circumstances debt waiver should be reserved for the truly needy people in desperate financial circumstances, or those people whose circumstances are outside of the ordinary run of cases, the Tribunal considers that the circumstances of the Applicant are not so special as to justify waiver under sections 101 of the Families Assistance Administration Act or 1237AAD of the Social Security Act.
Tribunal’s Conclusion
53. Based upon the material before it, and for these reasons, the Tribunal concludes that the correct or preferable decision in appeal Q 2006/593 is that the decision under review in relation to non-recovery of the parenting payment debt of $3,261.39 should be set aside and in place of that decision this Tribunal decides that the Commonwealth is entitled to recover the sum of $3,261.39 as a parenting payment debt.
54. In connection with appeal Q 2006/868, the Tribunal concludes that the correct or preferable decision is to affirm the decision that the Commonwealth is entitled to recover a family tax benefit debt of $1,533.84.
Tribunal’s Order
55. The Tribunal decides in appeal Q2006/593 that the decision of the Social Security Appeals Tribunal dated 1 August 2006 to waive the right of the Commonwealth to recover parenting payment debt of $3,261.39 should be set aside and in place of that decision this Tribunal decides that the Commonwealth is entitled to recover the sum of $3,261.39 as a parenting payment debt.
56. The Tribunal decides in appeal Q2006/868 to affirm the decision that the Commonwealth is entitled to recover a family tax benefit debt of $1,533.84.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Member SC Fisher
Signed: ……[Sgd]………….
AssociateDate of Hearing 24 May 2007
Date of Decision 1 February 2008
For the Applicant Mr P Cousins, Legal Aid Queensland
For the Respondent Mr M Black, Departmental Advocate
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