Oule and Secretary, Department of Social Services (Social services second review)

[2019] AATA 3504

Oule and Secretary, Department of Social Services (Social services second review) [2019] AATA 3504 (30 May 2019)

Division:GENERAL DIVISION

File Number:2018/4938           

2018/5863

Re:Eugenie Oule  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member D Mitchell

Date:30 May 2019

Place:Brisbane

The Tribunal affirms the decision under review.

.............................[SGD]........................................

Member D Mitchell

CATCHWORDS

SOCIAL SECURITY – Parenting Payment – Family Tax Benefit – overpayment – where data match of income occurred – where no administrative error – where no special circumstances – decision under review affirmed

LEGISLATION

A New Tax System (Family Assistance) Act 1999 (Cth)
A New Tax System (Family Assistance)(Administration) Act 1999 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

CASES
Angelakos and Secretary Department of Employment and Workplace Relations [2007] FCA 25
Jones and Secretary to the Department of Family and Community Services [2003] AATA 62 (22 January 2003)
Klaverstyn and Secretary, Department of Family and Community Services [2003] AATA 71 (24 January 2003)
L v Department of Social Security No N94/272 AAT No. 10230 (1995) 38 ALD 176
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Ivovic and Director-General of Social Services (1981) 3 ALN N95
Re Lumsden and Secretary Department of Social Security (1986) 10 ALN N225
Re Stubbs and Secretary Department of Families Community Services (2003) AAT 03/0729 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

30 May 2019

INTRODUCTION

1. Mrs Eugenie Oule (the Applicant) has at various times between 2011 and 2017 been in receipt of family tax benefit, parenting payment and rent assistance social security payments.

2. On 7 August 2015, the Respondent sent the Applicant an account payable letter advising her that she had received more family tax benefit than she was entitled to for the       2013-2014 financial year and subsequently had an amount payable of $1,387.42.[1]

   [1] Exhibit 2, T Documents, T5, pages 39-42, Letter to Applicant – Account payable for family tax benefit    2013-2014.

3. On 3 September 2015, an authorised review officer (ARO) affirmed that decision.[2]

   [2] Exhibit 2, T Documents, T6, pages 43-49, Decision and notes of Authorised Review Officer.

4. The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD), who affirmed the decision of the ARO on

   
   

   14 August 2018.[3]

   [3] Exhibit 2, T Documents, T2, pages 6-11, Decision of the Social Security and Child Support Division.

5. Following this, the Applicant sought a second-tier review of this matter by the

   
   

   General Division of this Tribunal, by way of an application dated 29 August 2018.[4]

   [4] Exhibit 2, T Documents, T 1, pages 1-5, Application for Review.

6. On 10 December 2015, the Respondent sent the Applicant a number of account payable letters advising her that:

   (a)She had been overpaid parenting payment for the period of 13 October 2011 to   21 November 2012, resulting in an amount payable of $2,598.65;[5]

   (b)She had been overpaid parenting payment for the period of 22 November 2012 to 17 June 2015, resulting in an amount payable of $28,542.58;[6]

   (c)She had received more family tax benefit than she was entitled to for the        2014-2015 financial year, resulting in an amount payable of $1,498.83;[7] and

   (d)She had been overpaid rent assistance for the period 4 January 2017 to 1 March 2017, resulting in an amount payable of $624.35.[8]

   [5] Exhibit 1, T Documents, T7, pages 171-172, Letter to Applicant - Account Payable for parenting payment.

   [6] Exhibit 1, T Documents, T10, pages 212-213, Letter to Applicant – Account Payable for parenting payment.

   [7] Exhibit 1, T Documents, T13, pages 247-250, Letter to Applicant – Account payable for family tax benefit 2014-2015.

   [8] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, Attachment D, Letter to Applicant – Account Payable for rent assistance.

7. On 5 June 2018, an ARO affirmed the decisions of 10 December 2015.[9]

   [9] Exhibit 1, T Documents, T8, pages 173-184, Decision and notes of Authorised Review Officer; T11, pages 214-227, Decision and notes of Authorised Review Officer; T14, pages 251-255, Decision and notes of Authorised Review Officer; T16, pages 259-263, Decision and notes of Authorised Review Officer.

8. The Applicant sought a first-tier review of that decision by the SSCSD, who affirmed the decision of the ARO on 26 September 2018.[10]

   [10] Exhibit 1, T Documents, T2, pages 12-22, Decision of the Social Security and Child Support Division.

9. Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application dated 10 October 2018.[11]

   [11] Exhibit 1, T Documents, T 1, pages 1-11, Application for Review.

10. On 11 February 2019, a Hearing was held to consider the two applications. At the Hearing, the Applicant was self-represented and gave sworn evidence in person.

11. The issues to be determined by the Tribunal is whether the Applicant has been paid more than her correct entitlement to parenting payment (PP), family tax benefit (FTB) and rent assistance (RA) and if so whether the excess payments are debts that are recoverable in part or in full.

    BACKGROUND

    FTB Debt of $1,387.42 relating to the 2013-2014 financial year

12. As a result of a data match that occurred with the Australian Taxation Office (ATO) on               25 November 2014 information was received by the Respondent that the Applicant was not required to lodge an income tax return for the 2013-2014 financial year. On the same day, the Respondent reconciled the Applicant’s FTB entitlement and she was paid a top up and supplement payment of $1,540.64.[12]

    [12] Exhibit 2, T Documents, T6, pages 43-49, Decision and notes of Authorised Review Officer.

13. On 8 July 2015, a further data match occurred between the ATO and Respondent advising that the Applicant lodged her 2013-2014 income tax return and that her verified income was greater than what the Applicant had estimated for the purposes of being paid FTB.[13]

    [13] Exhibit 2, T Documents, T6, pages 43-49, Decision and notes of Authorised Review Officer.

14. On 7 August 2015, the Respondent raised an FTB debt and sent the Applicant an account payable letter advising her that she had received more family tax benefit than she was entitled to for the 2013-14 financial year and subsequently had an amount payable of $1,387.42.[14]

    [14] Exhibit 2, T Documents, T5, pages 39-42, Letter to Applicant – Account payable for family tax benefit    2013-2014.

15. The Applicant sought review of that decision and on 3 September 2015 an ARO affirmed the decision finding that:

    The debt follows notification from the ATO that you were required to lodge an income tax return for 2013-14 and that you did so after 30 June 2015.  As a result of you verifying your income after the end of the lodgement year, the department decided that you were ineligible for the FTB supplements of $1,080.40 you were paid as part of the assessed arrears from 25 November 2014.  Furthermore, as your verified income was greater than had been estimated, you were found to have been overpaid FTB Part B of $307.02.  These two amounts comprise the debt that the department now seeks to recover from you.[15]

    [15] Exhibit 2, T Documents, T6, page 43, Decision and notes of Authorised Review Officer.

16. On 18 June 2018, the Applicant sought review of the ARO’s decision by the SSCSD, who affirmed the decision on 14 August 2018.[16]  

    PP Debt of $2,598.65 relating to the period of 13 October 2011 to 21 November 2012

    [16] Exhibit 2, T Documents, T2, pages 6-11, Decision of the Social Security and Child Support Division.

17. The Applicant was in receipt of PP during the period 13 October 2011 to 21 November 2012. She declared income from her company Barima Enterprises Pty Ltd of $6,000 in her 2011-2012 income tax return[17] and $15,000 in her 2012-2013 income tax return.[18] These amounts were not taken into consideration when determining the Applicant’s rate of PP.

    [17] Exhibit 1, T Documents, T17, page 268, Personal Tax Return 2012.

    [18] Exhibit 1, T Documents, T18, page 278, Personal Tax Return 2013.

18. On 10 December 2015, the Respondent raised a PP debt and sent the Applicant an account payable letter advising her that the correct amount of her earnings from

    
    

    Barima Enterprises Pty Ltd was not taken into account in the PP payments made to her. As a result, the Applicant had been overpaid parenting payment for the period 13 October 2011 to 21 November 2012 and subsequently had an amount payable of $2,598.65.[19]

    [19] Exhibit 1, T Documents, T7, page 172, Letter to Applicant – Account Payable for Parenting Payment.

19. The Applicant sought review of that decision and on 5 June 2018 an ARO affirmed the decision finding that:

    The amount of income a person earns each fortnight can reduce the amount of Parenting Payment Single payable for that fortnight.  While you were working for Barima Enterprises you were not declaring earnings and your payment amounts were not reduced accordingly. Investigations from March 2014 revealed you earned more than you declared and your payments should have been reduced to a lower amount than was paid to you.

    From 13 October 2011 to 21 November 2012 you were paid a total of $19,075.26.  Based on your actual earnings as advised by you, I have worked out you should have been paid $16,476.61.  This means you have a debt of $2,598.65.[20]

    [20] Exhibit 1, T Documents, T8, page 175, Decision and notes of Authorised Review Officer.

20. On 18 June 2018, the Applicant sought review of the ARO’s decision by the SSCSD, who affirmed the decision on 25 September 2018.[21] 

    PP Debt of $28,542.58 relating to the period of 22 November 2012 to 17 June 2015

    [21] Exhibit 1, T Documents, T2, pages 12-22, Decision of the Social Security and Child Support Division.

21. The Applicant was in receipt of PP during the period 22 November 2012 to 17 June 2015.

22. The Applicant had been married to Mr Arnold Markson since 30 November 2009. As       Mr Markson was not in Australia and was not able to support the Applicant financially she was paid the single rate of income support payments. Mr Markson was in Australia in May 2010 around the time the Applicant’s first son was born. The Respondent continued to pay the Applicant the single rate of parenting payment as Mr Markson was unable to support her or to contribute financially to the household as he was in Australia on a temporary visa.[22]

    [22] Exhibit 1, T-documents, T11, page 217, Decision and notes of Authorised Review Officer.

23. On 22 November 2012, the Applicant married Mr Jean Oule.

24. On 14 March 2014, the Applicant lodged her ‘becoming partnered’ forms, however she did not complete the question in relation to whether Mr Oule received any income from work in the ‘partner details’ form.[23]

    [23] Exhibit 1, T-documents, T5, pages 142-159, Parenting Payment Partnered-Partner’s Details.

25. The Applicant was transferred from parenting payment single to parenting payment partnered rate from 4 March 2014.[24]

    [24] Exhibit 1, T-documents, T38, page 656, Centrelink archived online document recording records.

26. Mr Oule’s income was recorded as $684 for 1 week from 4 March 2014 and then as $0 from 3 May 2014.[25]

    [25] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, paragraphs 23-25, page 3.

27. As a result of numerous information requests[26] made by the Respondent, the Applicant provided the following documents between August 2014 and March 2015:

    [26] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, paragraphs 26-27, page 4.

    -    Her 2012;[27] 2013;[28] and 2014[29] income tax return;

    -    Completed copy of a Module PC – Private Company forms for Barima Enterprises Pty Ltd;[30]

    -    ASIC search as at 28 February 2013;[31]

    -    Certificate of Registration for Barima Enterprises Pty Ltd;[32]

    -    Hair Africa Balance Sheet as at 30 June 2012;[33]

    -    Hair Africa Balance Sheet as at 31 December 2012;[34]

    -    Hair Africa Profit and Loss statement from July 2011 to June 2012;[35]

    -    Hair Africa Profit and Loss statement from July 2012 to December 2012;[36]

    -    Financial reports including company tax returns for Barima Enterprises Pty Ltd for the 2012 financial year;[37] and

    -    Barima Enterprises Pty Ltd company tax returns for the year ending 2011.[38]

    [27] Exhibit 1, T-document, T17, pages 264-273, Personal Tax Return 2012.

    [28] Exhibit 1, T-documents, T19, pages 274-280, Personal Tax Return 2014.

    [29] Exhibit 1, T-documents, T19, pages 281-291, Personal Tax Return 2014.

    [30] Exhibit 1, T-documents, T25, pages 316-330, Mod PC Barima Enterprises Pty Ltd.

    [31] Exhibit 1, T-documents, T26, page 331, ASIC Business Name extract Hair Africa (Shepparton).

    [32] Exhibit 1, T-documents, T24, page 315, Certificate of Registration Barima Enterprises Pty Ltd.

    [33] Exhibit 1, T-documents, T27, page 334, Profit and Loss Statement and Balance Sheet for 2011/2012 Hair Africa (Shepparton).

    [34] Exhibit 1, T-documents, T27, page 336, Profit and Loss Statement and Balance Sheet for 2011/2012 Hair Africa (Shepparton).

    [35] Exhibit 1, T-documents, T27, pages 332-233, Profit and Loss Statement and Balance Sheet for 2011/2012 Hair Africa (Shepparton).

    [36] Exhibit 1, T-documents, T27, page 335, Profit and Loss Statement and Balance Sheet for 2011/2012 Hair Africa (Shepparton).

    [37] Exhibit 1, T-documents, T29, pages 339-344, Financial Report for the Period ended 30 June 2012 – Barima Enterprises Pty Ltd.

    [38] Exhibit 1, T-documents T30, pages 345-359, Business Tax Return 2011 – Barima Enterprises Pty Ltd.

28. The Respondent sought information from Mr Oule’s employers ACME 1 Pty Ltd and Wunderbar Aluminium Products.[39] Responses were provided outlining Mr Oule’s employment and earning details from ACME 1 Pty Ltd on 12 August 2015[40] and from Wunderbar Aluminium Products on 19 August 2015.[41]

    [39] Exhibit 1, T-documents, T37, pages 493-495, Centrelink online document recording records.

    [40] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, Attachment A, Employment details provided by Wunderbar Aluminium Products in relation to Mr Oule.

    [41] Exhibit 1, T-documents, T37, page 495, Centrelink online document recording records.

29. On 10 December 2015, the Respondent raised a PP debt and sent the Applicant an account payable letter advising her that the correct amount of her earrings from Barima Enterprises Pty Ltd and her husband’s earnings from ACME 1 Pty Ltd and Wunderbar Aluminium Products was not taken into account in calculating the rate of PP payments made to her.  As a result, she had been overpaid parenting payment for the period          22 November 2012 to 17 June 2015 and subsequently had an amount payable of $28,542.58.[42]

    [42] Exhibit 1, T Documents, T10, page 212, Letter to Applicant – Accounts Payable for Parenting Payment.

30. The Applicant sought review of that decision and on 5 June 2018 an ARO affirmed the decision, finding that:[43]

    [43] Exhibit 1, T Documents, T11, pages 214-227, Decision and notes of Authorised Review Officer.

    ·     You arrived in Australia on 28 November 2009 after being overseas from
    23 May 2007.

    ·     You claimed Newstart Allowance and you were granted from
    7 December 2009.

    ·     You notified the department you were married and your husband (Arnold Markson) was a student in Africa.

    o   You have since stated he was working full-time as a Computer Engineer.

    ·     The department paid you the single rate of Newstart Allowance from
    7 December 2009 because your partner/husband was absent from Australia and he was unable to contribute financially to the partnership/household.

    ·     You had a child on 22 May 2010 and claimed Parenting Payment on
    3 June 2010.

    ·     The department paid you the single rate of Parenting Payment from
    22 May 2010 because your partner/husband was in Australia, not residentially qualified to an income support payment, not permitted to work in Australia and he was not able to contribute financially to the household.

    ·     On 4 June 2010 the department sent you a letter which advised you that, amongst other things, you were required to advise, within 14 days, if you are involved in or receive a benefit from a company, or you separate from your partner.

    ·     You started a business, African Hair on 26 June 2011.

    o   The business was linked to company Barima Enterprises.

    o   The department was not aware until September 2014 that you were operating a business under a company.

    o   Your company Barima Enterprises was paying you a wage from 1 July 2011.

    ·     On 8 July 2011 the department sent you a letter which advised you that, amongst other things, you were required to advise, within 14 days, if your income changes (goes up or down), or become involved in a Business/Company or you separate from your partner.

    ·     Your department file reflects activity in July 2011 relating to child care assistance as a result of employment with Barima Pty Ltd - African Hair.

    ·     The department was notified on 25 July 2011 that you had commenced the New Enterprise Incentive Scheme 6 week program.

    ·     You provided a Profit and Loss statement on 12 October 2011 regarding your business African Hair.

    o   You stated that you were a self-employed sole trader.

    §  You had initially stated you were not operating as a sole trader but changed your response to the question and said you were.

    o   The Profit and Loss statement reflected that you were running at a loss      (-$2,965) once your expenses were deducted.

    o   The department recorded that you had no self-employment income from 30 September 2011.

    o   Self-employment income is assessed differently to wages.

    ·     On 12 October 2011 the department sent you a letter which advised you that, amongst other things, you were required to advise, within 14 days, become involved in a Company, or if there is a change in your income from employment (the amount goes up or down).

    ·     On 11 April 2012 the department sent you a letter which advised you that, amongst other things, you were required to advise, within 14 days, if you separate from a partner, marry or there is a change in your income from employment (the amount goes up or down), or you become involved in a company.

    ·     You departed Australia on 19 November 2012.

    ·     You married Jean Oule on 22 November 2012.

    ·     You arrived back in Australia on 1 December 2012.

    ·     Your husband Jean Oule, arrived in Australia on 8 December 2012.

    ·     You notified the Child Support Agency on 6 May 2013 that Arnold Barima had 21 percent care of Arnold Markson from 1 August 2012.

    ·     You had contact with the department on 19 June 2013 and it was noted your husband had arrived in Australia and was settling in well.

    ·     Your husband Jean Oule, started work and had employment income from August 2013.

    ·     The department sent you a letter on 20 January 2014 stating you were being paid Parenting Payment Single and your annual income was $26.38.

    ·     Your single rate of Parenting Payment was revisited on 4 March 2014 after you had provided a rent certificate stating you were living with your husband.

    ·     The department made a decision on 17 March 2014 to pay you the partnered rate of Parenting Payment from 4 March 2014.

    ·     The department undertook a review in June 2014 of your income and started requesting financial information regarding your business activities.

    o   The department became aware in September 2014 that you were operating a company from June 2011.

    o   The review finished in June 2015.

    o   You were paid wages by your company in the financial years 2011/2012, 2012/2013, 2013/2014 and 2014/2015.

    ·     From 22 November 2012 you were the member of a married couple.

    o   You were entitled to the lower couple rate of Parenting Payment.

    ·     During the period 22 November 2012 to 12 March 2015 you were working for Barima Enterprises Pty Ltd.

    ·     You did not advise the Department of Human Services of your earnings/wages from employment with Barima Enterprises Pty Ltd.

    ·     During the period 2 August 2013 to 21 May 2014 your partner was working for Acme1.

    ·     You did not advise the Department of Human Services of your partner's earnings from employment with Acme 1.

    ·     During the period 19 November 2014 to 17 June 2015 your partner was working for Wunderbar.

    ·     You did not advise the Department of Human Services of your partner's earnings from employment with Wunderbar,

    ·     From 22 November 2012 to 17 June 2015 your Parenting Payment rate was based on income that was less than the combined income you received for this period.

    ·     During the period 22 November 2012 to 17 June 2015 you received Parenting Payment totalling $35,190.28.

    ·     You were entitled to receive $6,647.70.

    ·     On 12 November 2015 the department decided you had a debt of $28,542.58 to repay and sent you a debt notice.

1. On 18 June 2018, the Applicant sought review of the ARO’s decision by the SSCSD, who affirmed the decision on 25 September 2018.[44] 

   FTB Debt of $1,498.83 relating to the 2014-2015 financial year

   [44] Exhibit 1, T Documents, T2, pages 12-22, Decision of the Social Security and Child Support Division.

2. As a result of a data match that occurred with the Australian Taxation Office on

   
   

   18 November 2015 information was received by the Respondent that the Applicant’s actual income for the 2014-2015 financial year was $20,468.00 and that her husband’s actual income was $23,172.00.[45]  These income amounts were higher than those provided by the Applicant when estimating income for FTB purposes.

   [45] Exhibit 1, T Documents, T14, page 252, Decision and notes of Authorised Review Officer.

3. On 19 November 2015, the Respondent raised an FTB debt and sent the Applicant an account payable letter advising her that she had received more family tax benefit than she was entitled to for the 2014-2015 financial year and subsequently had an amount payable of $1,498.83.[46]

   [46] Exhibit 1, T Documents, T14, page 252, Decision and notes of Authorised Review Officer.

4. The Applicant sought review of that decision and on 5 June 2018 an ARO affirmed the decision, finding that:[47]

   ·     You estimated on 1 July 2014 your income would be $15,000 and your husbands would be $7,500.00 for the 2014/2015 financial year.

   ·     Entitlement to Part B is determined by the lowest income of the couple.

   ·     Your taxable income was $20,468.00 for the 2014/2015 financial year.

   ·     Your partner's taxable income was $23,172.00.

   ·     During the period 26 June 2014 to 24 June 2015 you received Family Tax Benefit Part B totalling $3,806.07.

   ·     You were entitled to receive $2,307.24.

   ·     The debt was raised because your income exceeded the threshold of $5,329.00. Income over $5,329.00 reduces Part B by $0.20 for every dollar over the threshold. Part B is no longer payable when the lowest income exceeds $27,065.00.

   [47] Exhibit 1, T Documents, T14, pages 251-255, Decision and notes of Authorised Review Officer.

5. On 18 June 2018, the Applicant sought review of the ARO’s decision by the SSCSD, who affirmed the decision on 25 September 2018.[48] 

   RA Debt of $624.35 relating to the period 4 January 2017 to 1 March 2017

   [48] Exhibit 1, T Documents, T2, pages 12-22, Decision of the Social Security and Child Support Division.

6. On 4 January 2017, the Applicant tried to update her accommodation circumstances online to advise that she was now a homeowner and no longer paid rent, the transaction was not completed until 8 March 2017.[49]

   [49] Exhibit 1, T Documents, T16, page 260, Decision and notes of Authorised Review Officer.

7. On 27 May 2017, the Respondent raised a RA debt and sent the Applicant an account payable letter advising her that she had received more rent assistance than she was entitled to for the period 4 January 2017 to 1 March 2017 and subsequently had an amount payable of $624.35.[50]

   [50] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, Attachment D, Letter to Applicant – Account Payable for rent assistance.

8. The Applicant sought review of that decision and on 5 June 2016 an ARO affirmed the decision, finding that:[51] 

   ·     You notified the department on 4 January 2017 via online services that you had become a homeowner and no longer paid rent.

   ·     The department letter dated 5 February 2017 stated that you were still being paid rent assistance of $153.30 from 17 February 2017.

   ·     During the period 4 January 2017 to 1 March 2017 you received rent assistance totalling $624.35.

   ·     You were entitled to receive $0.

   ·     The debt was raised because you ceased to be an eligible non-homeowner on 4 January 2017.

   ·     The debt has been recovered in full.

   [51] Exhibit 1, T Documents, T16, pages 259-263, Decision and notes of Authorised Review Officer.

9. On 18 June 2018, the Applicant sought review of the ARO’s decision by the SSCSD, who affirmed the decision on 25 September 2018.[52] 

   [52] Exhibit 1, T Documents, T2, pages 12-22, Decision of the Social Security and Child Support Division.

   ISSUES

10. The issues for the Tribunal to consider are:

    1.Whether, the Applicant has been paid more than her correct amount of:

    a.    Family tax benefit for the 2013-2014 financial year;

    b.    Parenting payment for the period 13 October 2011 to 21 November 2012;

    c.    Parenting payment for the period 22 November 2012 to 17 June 2015;

    d.    Family tax benefit for the 2014-2015 financial year; and

    e.    Rent assistance for the period 4 January 2017 to 1 March 2017; and

    2.If so, whether the excess payments are debts that are recoverable in part or in full?

    CONSIDERATION

11. The law in relation to the payment of PP, FTB, RA and recovery of debts to the Commonwealth is found in the Social Security Act 1991 (the SS Act), the Social Security (Administration) Act 1999 (SSA Act), A New Tax System (Family Assistance) Act 1999 (the FA Act) and A New Tax System (Family Assistance)(Administration) Act 1999 (FAA Act).

12. It is relevant in this matter to point out that there is well over 1000 pages of evidence before the Tribunal.  The Applicant has provided evidence in relation to the earnings of herself, her husband and her company and the Respondent has in turn provided a vast amount of evidence in relation to its interactions with the Applicant in relation to the relevant payments.

13. The Applicant has also provided a number of statements and submissions and at the Hearing set out her contentions and provided what I consider to be open and honest responses in relation to questions asked by both the Respondent and Tribunal.

    DO THE DEBTS EXIST?

    Family Tax Benefit and Rent Assistance Debts

14. Section 21 of the FA Act provides the requirements for when an individual is eligible for FTB and refers to those provisions of the Act which are relevant in working out the individual’s rate of FTB.

15. Section 58 of the FA Act provides that subject to sections 60 to 61B, an individual’s annual rate of FTB is to be calculated in accordance with the Rate Calculator in

    
    

    Schedule 1. The rate calculator for FTB takes into consideration the individuals income and maintenance entitlement and includes the standard rate of FTB, relevant supplement and rent assistance benefits.

16. Where it is determined that a person is eligible to receive FTB, their rate is calculated and the general proposition is that a reconciliation will be undertaken to ensure that the person is paid the correct amount of FTB during the relevant period.

17. When a person’s income is verified, no later than 30 June of the following income year (through the lodgement of their and, if applicable, their partner’s income tax return for the benefit year) and the other reconciliation conditions are met they become entitled to any additional FTB that may be payable, including FTB supplements.  Where a person does not satisfy the reconciliation conditions there will be a limit placed on the amount of FTB that may be paid. Where a reconciliation shows that a person received more than their entitlement a debt will occur.

18. Section 32A of the FAA Act requires that the Respondent disregards the amounts of FTB supplements when making or varying determinations under section 105 unless, and until, the individual has satisfied the applicable FTB reconciliation conditions. In relation to the 2013-2014 FTB period, sections 32C and 32D of the FAA Act requires that the Applicant and her husband lodge their 2013-2014 personal income tax returns by 30 June 2015 or by the end of such further period that the Respondent determines if satisfied there were special circumstances that prevented the Applicant from lodging her return on time, in order for the FTB supplement to be payable.

19. Division 2B of Part 5 of Schedule 1 to the FA Act outlines the eligibility requirements for rent assistance in relation to a FTB child and how the individuals rate of rent assistance is calculated in line with family assistance amounts to determine the individual’s maximum FTB rate. Relevantly to be eligible for rent assistance section 38C(1)(d) of Schedule 1 to the FA Act requires that an individual is not an ineligible home owner.

20. For the purposes of the current matters before the Tribunal the Applicant’s rent assistance payment formed part of her FTB payment.

21. Section 71(1) of the FAA Act provides that if a person receives a FTB payment that they were not entitled in respect of a period or event, the amount of the payment is a debt due to the Commonwealth by the person.

22. Section 71(2) of the FAA Act provides that if a person has been paid an amount and received an amount that is greater than the amount that should have been paid to the person the difference between the received amount and the correct amount is a debt due to the Commonwealth by the person.

23. Section 25 of the FA Act places the obligation on the FTB payment recipient to report any changes in their circumstances, which includes their earnings – this is set out in most cases by letters sent by Centrelink, pursuant to section 25A of the FA Act.

    Did the Applicant receive the correct amount of FTB for the 2013-2014 financial year?

24. The Respondent contends that the FTB debt for the period 2013-2014 has been correctly calculated.[53] The Respondent submitted that the decision made on 7 August 2015 to raise and recover a debt in the amount of $1,387.42 for the 2013-2014 financial year was made on the basis that the Applicant did not lodge her tax return by the due date of 30 June 2015. As a result, she was not entitled to the top up and supplement payment and her adjusted taxable income was higher than her estimated income.[54]

    [53] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, page 10, paragraph 68.

    [54] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, page 2, paragraph 10.

25. In her application for review to this Tribunal the Applicant provided a written submission in response to the decision of the SSCSD.  She contended that:[55]

    -    She had not advised the ATO that she did not need to lodge an income tax return for the 2013-2014 income tax year;

    -    The ATO and/or the Respondent had made a mistake; and

    -    Her accountant lodges her husband, her and the business tax returns together.

    [55] Exhibit 1, T-documents, T1, pages 3-4; Exhibit 2, T-documents, T1, page 213.

26. At the Hearing, the Applicant told the Tribunal that she agreed her 2013-2014 income tax return was lodged in July 2015, however, questioned the debt calculation on the basis that her income seemed to be impacted by child support entitlements that she has not been receiving. The Applicant stated and that her accountant had taken care of her tax returns.

27. The evidence before the Tribunal is clear that the Applicant did not lodge her 2013-2014 income tax return until 8 July 2015, however, her husband’s income tax return was lodged on 3 October 2014.  The Applicant does not dispute this.  While the Applicant does dispute the ATO being told that she did not intend to lodge an income tax return for the 2013-2014 income year this does not change the fact that her return was not lodged until after 30 June 2015.

28. It is necessary to consider whether special circumstances exist that prevented the Applicant from lodging her income tax return on time. The FAA 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.[56]

    [56] 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, Dept 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].

29. Relevantly, in Angelakos and Secretary Department of Employment and Workplace Relations [2007] FCA 25 the Federal Court stated:

    …..There is less 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 unusual case …

30. The Applicant advised the ARO that health issues associated with pregnancy, a failure on the part of her accountant and an absence of knowledge about the lodgement requirements prevented her from lodging her 2013-2014 income tax return by 30 June 2015.[57]

    [57] Exhibit 2, T-documents, T6, page 45, Decision and notes of Authorised Review Officer.

31. In her application for review to this Tribunal the Applicant provided:

    I was sick from October 2014 till 23^rd June 2015. Dramatically reducing my capacity to work and input in my business.  I was pregnant and has always heavily suffered from morning sickness.  This will often lead to emergency admissions and at one occasion a miscarriage.  The special circumstances in this case, I believe, applied to both my husband and I. We were relying on one constant wage and my husband at the time was working in Bendigo while we lived in Shepparton. Up until our move to Wodonga in October 2014 and my subsequent sickness.[58]

    [58] Exhibit 2, T-documents, T1, page 2, Application for Review.

32. The Applicant also set out that she was during that period going to her business two to three times a week however she was only staying for between 30 minutes and an hour as that was all the time it took to “take the mail, check/order stock and do the banking”.[59]

    [59] Exhibit 2, T-documents, T1 page 2, Application for Review.

33. While I accept that the Applicant had a difficult pregnancy and was not at her usual capacity to undertake activities, given she did continue to engage with her business and liaise with her accountant, I am not satisfied that there were special circumstances that prevented the Applicant from lodging her 2013-2014 tax return by 30 June 2015.

34. Consequently, I find that the Applicant has not satisfied the reconciliation requirements and was therefore not entitled to the top up and supplement payment in respect of the 2013-2014 year.

35. In relation to the overpayment portion of the debt, the evidence before the Tribunal shows that the Applicant estimated her income for 2013-2014 as being $15,000.[60] However, the Applicant’s income tax return reflected that she in fact earned $19,706.[61]  The Applicant contended that her accountant made errors however did not dispute that her 2013-2014 income tax return did reflect earnings of $19,706.

    [60] Exhibit 2, T-documents, T9, page 125, Centrelink screen captures including payment summary.

    [61] Exhibit 8, Taxation documents provided by the Applicant on 7 February 2019, Income Tax Return 2013-14; Notice of Assessment – year ended 30 June 2014.

36. Consequently, I find that the Applicant received more than her entitlement of FTB for the 2013-2014 financial year and that there is no evidence before the Tribunal that the debt calculation is incorrect.

37. Based on the evidence before the Tribunal, I find that the Applicant received more FTB than she was entitled to for the 2013-2014 income year and as such this overpayment is a FTB debt owed to the Commonwealth.

    Did the Applicant receive the correct amount of FTB for the 2014-2015 financial year?

38. The Respondent contends that the FTB debt for the period 2014-2015 has been correctly calculated.[62] The Respondent submitted that a data match occurred with the ATO and the Respondent was notified that the Applicant’s actual adjusted taxable income for the   2014-2015 financial year was $20,468 and her partner’s was $23,172. As a result, the Respondent made a decision to recover an FTB debt in the amount of $1,498.83, being the difference between the amount of FTB the Applicant actually received and what she was entitled to receive.[63]

    [62] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, page 10, paragraph 68.

    [63] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, page 6, paragraphs 49-50.

39. At Hearing and in her written submissions, the Applicant again, made reference to there being an issue in relation to her child support entitlement and percentage care arrangements with her ex-husband.[64] She did not provide any evidence to dispute the income amounts shown in her or her husband’s income tax returns.

    [64] Exhibit 7, Applicant’s submissions provided on 7 February 2019.

40. Member Amundsen remarked that at the SSCSD Hearing the Applicant:

    … confirmed to me that she would have estimated her income as $15,000 as she did that each year on the advice of her accountant. However she disputes that she had given an estimate of $7,500 in respect of her husband.  She commented that he had been working at that time and so an estimate of $7,500 would not have made sense.  She believes Centrelink updated her income estimate but failed to correctly update her husband’s income.[65]

    [65] Exhibit 2, T-documents, T2, page 9, paragraph 24, Decision of the Social Services and Child Support Division.

41. Based on the evidence before the Tribunal it is clear that the Applicant’s rate of FTB for the 2014-2015 financial year was calculated on her income estimates of $15,000 for herself and $7,500 for her husband.[66] However the Applicant’s 2014-2015 income tax return shows that the Applicant earned $20,468[67] and her husband earned $23,172.[68]

    [66] Exhibit 2, T-documents, T9, page 124, Centrelink screen captures including payment summary.

    [67] Exhibit 8, Taxation documents provided by the Applicant on 7 February 2019, Income Tax Return 2014-15; Notice of Assessment – year ended 30 June 2015.

    [68] Exhibit 8, Taxation documents provided by the Applicant on 7 February 2019, Income Tax Return 2014-15.

42. Consequently, I find that the Applicant received more than her entitlement of FTB for the 2014/2015 financial year and that there is no evidence before the Tribunal that the debt calculation is incorrect.

43. Based on the evidence before the Tribunal, I find that the Applicant received more FTB than she was entitled to for the 2014/2015 income year and as such this overpayment is a FTB debt owed to the Commonwealth.

    Did the Applicant receive the correct amount of RA for the period 4 January 2017 to         1 March 2017?

44. The Respondent contends that the RA debt for the period 4 January 2014 to

    
    

    1 March 2014 has been correctly calculated.[69] The Respondent submitted that the decision made on 27 May 2017 to raise and recover a RA debt in the amount of $624.35 for the period 4 January 2017 to 1 March 2017 was made on the basis that the Applicant’s incomplete online transaction (made on 4 January 2017) was finalised on 8 March 2017 notifying the Respondent that the Applicant became a homeowner on 4 January 2017, and as a result she had been paid more RA than she was entitled to.[70]

    [69] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, page 10, paragraph 68.

    [70] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, page 7, paragraphs 54-57.

45. At the Hearing the Applicant told the Tribunal about the process she went through in buying a block of land and having a house built. The Applicant stated she had changed her address with Centrelink in November prior to moving into her new home. The Applicant said she initially did not agree that she was getting the RA payments and that it was only when the ARO bought it to her attention that she could see she must have been getting RA as she was not looking at her statements. 

46. The Applicant told the Tribunal that she had informed the Respondent of her change of address and that she was no longer renting at the end of October or early November 2016, despite moving into her new home at the end of November 2016.  She said she received a rent certificate letter form the Respondent and that it said that if she did not return it by the due date her RA would be cancelled and that she believed this letter was auto generated and she did not have to do anything with it as she had notified the Respondent of her change of circumstances online.

1. Based on the evidence before the Tribunal it is clear that the Applicant was paid RA during the period 4 January 2017 to 1 March 2017. However, as a homeowner she was not entitled to received RA.

2. Consequently, I find that the Applicant received more than her entitlement of RA for the period 4 January 2017 to 1 March 2017 and that there is no evidence before the Tribunal that the debt calculation is incorrect.

3. Based on the evidence before the Tribunal, I find that the Applicant received more RA than she was entitled to for the period 4 January 2017 to 1 March 2017 and as such this overpayment is a RA debt owed to the Commonwealth.

   Parenting Payment Debts

4. Section 500 of the SS Act provides that a person is qualified for Parenting Payment (PP) if the person has at least one child to which they are the principal carer and the person enters a Parenting Payment Activity Agreement and complies with its terms.

5. Section 1068A of the SS Act sets out how to calculate the rate of parenting payment for a single person.

6. Section 1068B of the SS Act sets out how to calculate the rate of parenting payment for a person who is a member of a couple.

7. The ordinary income of both the person qualifying for PP and where relevant their partner is taken into account when calculating the rate of PP entitlement.

8. Section 8(1) of the SS Act provides that income in relation to a person means:

   (a)An income amount earned, derived or received by the person for the person’s own use or benefit; or

   (b)A periodical payment by way of gift or allowance; or

   (c)A periodical benefit by way of gift or allowance;

   but does not include an amount that is excluded under subsection (4), (5) or (8).

9. Section 8(1) of the SS Act provides that ordinary income means income that is not maintenance income or an exempt lump sum.

10. Section 1072 of the SS Act sets out that the general meaning of ordinary income as:

    A reference in this Act to a person’s ordinary income for a period is a reference to the person’s gross ordinary income from all sources for the period calculated without any reduction, other than a reduction under Division 1A.

11. Section 1223(1) of the SS 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.

12. The obligation is on the payment recipient to report any changes in their circumstances, which includes their earnings – this is set out in most cases by letters sent by Centrelink pursuant to section 68 of the SSA Act.

13. Section 100 of the SSA Act provides that a person who is receiving a social security payment is given a notice under section 68(2) of the SSA Act requiring them to report a change in circumstance within a specified time. If the change occurs but the person does not inform the Department and the person’s rate of social security payment changes, the social security payment becomes payable to the person at the reduced rate on the day on which the change of circumstances occurred.

14. Relying on notices issued to the Applicant,[71] the Respondent contends that the Applicant failed to comply with the information notices issued to her under section 68(2) of the SSA Act, therefore her PP can be retrospectively reduced under section 100(1) of the SSA Act from 13 October 2011.[72] The Respondent further contends that the amounts of overpaid PP constitute legally recoverable debts under section 1223(1) of the SS Act.[73]

    Did the Applicant receive the correct amount of PP for the period 13 October 2011 to      21 November 2012?

    [71] Exhibit 1, T-documents, T39-T123, Various letters sent to the Applicant between October 2011 and June 2015.

    [72] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, page 8, paragraph 63.

    [73] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, page 9, paragraph 65.

15. In her written submissions to the Tribunal the Applicant stated:

    I was entitled to the PPS payment. I was a single parent.

    I did not have income from the business at that time.

    Any overpayment raised during this period is due to the calculation of Centrelink dividing my annual income into 26 fortnights, thus coming with a fictitious figure as income for each fortnight from 2011 to 2015.[74]

    [74] Exhibit 7, Applicant’s submissions provided on 7 February 2019.

16. The Applicant’s written submissions also make reference to a director’s loan of $18,000 being received for her wedding for the period 2012-2013 financial year (June 12 – December 12).[75]

    [75] Exhibit 7, Applicant’s submissions provided on 7 February 2019.

17. At the Hearing the Applicant told the Tribunal that:

    -    she was single during this period;

    -    that she withdrew a “substantial amount of money for three plane tickets, for the immigration lawyer, for the immigration fees for his [Mr Oule’s] visas and for the wedding” and that all in all it amounted to close to $24,000 to $25,000;

    -    the funds were withdrawn in one lump sum to pay for bills on or about November 2012;

    -    the expenses were incurred to prepare for an event and to have her husband in Australia;

    -    she thinks that her accountant made an error as the withdrawals from the business should have been directors loans not income; and

    -    it is fair enough for Centrelink to treat the director’s loan as income as she did use the money for her own personal gain however it should only affect the weeks when she withdrew the money not every single payment that she has received throughout the year.

18. During cross-examination the Applicant:

    -    Confirmed that her 2012 income tax return listed an amount of $6,000 as being salary or wages derived from her business;

    -    Advised that at first she was trading as a sole trader however then changed to trading as a company;

    -    Confirmed that her 2013 income tax return listed an amount of $15,000 as being salary or wages derived from her business;

    -    Disputed that the $15,000 was actual income;

    -    When asked to look at the Summary of Changes Table in the debt calculation she confirmed the $6,000 and $15,000 reflected were consistent with her income tax returns for 2012 and 2013;

    -    Told the Tribunal that her accountant either puts 5, 10 or 15 thousand dollars as income. The Applicant said “okay, back then the $15,000 he said that’s to make sure it doesn’t affect your Centrelink, it’s up to, so instead of asking how much money you’ve withdrawn there, there an there, he just puts a set amount which was in the emails that I sent in October because I wanted him to confirm to me, and he said that $15,000 was back in the days. It’s now $5,000, so each year he would change it to either 15, 10 or 5. So that’s not the actual income.  That’s just an income that he’s put there for taxation purposes, that’s it. So it’s not the actual income.”;

    -    She told Centrelink about the amounts when they changed from the sole trader to a company and that she completed a MOD form; and

    -    Confirmed that she submitted the MOD form provided at T25 which was date stamped as having been received by the Respondent on 24 September 2014. The Applicant said that she had submitted a previous MOD form in 2011/2012 and confirmed there was no MOD form provided to the Tribunal other than that found at T25.

19. While I accept the Applicant’s evidence in relation to her accepting advice from her accountant in relation to completing her income tax return and in relation to how to manage her business this does not change the fact that she has declared the amounts of $6,000 and $15,000 for the 2012 and 2013 income tax years as salary or wages derived from her business (Barima Enterprises Pty Ltd). 

20. There is no corroborating evidence before the Tribunal that these amounts should be classified as anything other than an amount earned, derived or received for the Applicant’s own use or benefit. Therefore, these amounts are considered income for the purposes of the SS Act. The amounts withdrawn that were declared in the Applicant’s income tax returns differs to those she told the Tribunal at Hearing and again to those disclosed in her written submissions. There is no evidence before the Tribunal of how much money the Applicant withdrew from her business during this period or when any such withdrawals occurred.

21. It is open for individuals to manage their business and taxation affairs as they see fit, however they must also be prepared for any impact the decisions they make in this regard may have on their entitlements to social security payments.

22. Based on the evidence before the Tribunal it is clear that the Applicant’s rate of PP for the period 13 October 2011 to 21 November 2012 was calculated without taking the income she derived from her business into consideration and consequently she received more than her entitlement of PP for the period.

23. In relation to the calculation of the PP debt there is no evidence before the Tribunal to suggest that the debt raised is incorrect.  While the Applicant contended that the income she derived from her business should only have affected the fortnightly payment in which she withdrew the money from the business, I do not consider this contention to be consistent with the objects of the social security legislation.

24. Given the well-known accounting methodology that individual’s wages from personally run businesses are often calculated/reconciled at the end of the financial year in-conjunction with finalising the company accounts for taxation purposes, it is not reasonable for an individual to then want to change the characterisation of that income to suit their social security payments.

25. At the Hearing the Respondent told the Tribunal that PP rates were calculated based on actual income earnt over a period.  For employment income, that is over a fortnight, in terms of company or wages being withdrawn from a company, that is annualised, as companies provide their tax returns at the end of the financial year, so it is not like a sole trader business where you can provide a profit and loss statement every 13 weeks or       3 months.

26. Consequently, I do not accept the Applicant’s contentions that the income that she has derived from her business should not be attributed across the full income year.  I find that the Applicant received more than her entitlement of PP for the period 13 October 2011 to      21 September 2012 and that there is no evidence before the Tribunal that the debt calculation is incorrect.

27. Based on the evidence before the Tribunal, I find that the Applicant received more PP than she was entitled to for the period 13 October 2011 to 21 September 2012 and as such this overpayment is a PP debt owed to the Commonwealth.

    Did the Applicant receive the correct amount of PP for the period 22 November 2012 to
    17 June 2015?

28. In her written submissions to the Tribunal the Applicant stated:

    Centrelink payments are based on each fortnightly income. ATO received the data on a yearly basis.

    Overpayment was in the month of November 2012, when I took a loan for:

    Wedding, return place tickets (3), Immigration application fee and immigration agent/lawyer fee.

    Centrelink reports should not take the annual income and divide it by 26 in order to calculate overpayments, rather, this should be done fortnightly based on what I earned on a specific two­week period.

    We suspect that when Centrelink cross referenced data with the ATO, they just divided my annual income by 26, giving them an amount each fortnight and then calculated an overpayment.

    This is an incorrect calculation since I took funds from the business in form of a director's loan during specific periods during the financial year. These payments to me were not done on a fortnightly basis, but rather as a lump sum and only a specific fortnight should be affected, not all 26 weeks of the year.[76]

    [76] Exhibit 7, Applicant’s submissions provided on 7 February 2019.

29. The Applicant’s written submissions also make reference to a director’s loan of $15,000 being received to purchase a car for the 2013-2014 financial year, $10,000 for 2014-2015 financial year and $10,000 for the 2015-2016 financial year.[77]

    [77] Exhibit 7, Applicant’s submissions provided on 7 February 2019.

30. At the Hearing the Applicant told the Tribunal that:

    -    Her husband Mr Oule arrived in Australia on 8 December 2012;

    -    A few days after Mr Oule’s arrival she went to Centrelink and took his passport and certified copies of documents of which she gave copies to a Centrelink officer.  The Applicant said that she had a discussion about the uniqueness of her wedding certificate with the Centrelink officers and detailed other discussions had on that occasion;

    -    She believes she advised Centrelink that she was married in December 2012 and that the debt has arisen from an administrative error by Centrelink;

    -    She did receive correspondence shortly after going to the Centrelink office (in December 2012) and she remembers the letter saying “Your Parenting Payment Single”, however she had spent 8 years in Australia studying and working and was entitled to get something from Centrelink;

    -    She went back to the Centrelink office shortly after receiving the letter (either in December 2012 or January 2013) to tell Centrelink that she is married and should be changed from parenting payment single to parenting payment married and it was then she was told the payment is called parenting payment partnered;

    -    She went to another Centrelink office in 2017 and her file was still not updated to show she was married;

    -    In 2013 she opened a second hairdressing salon and needed a new car to allow her to safely travel between her businesses and home;

    -    She needed a personal loan to purchase a new car and her accountant advised her to see how much she could borrow and then withdraw a lump sum for the business and that is what she did. The Applicant said she withdrew $7,000 from her business toward the purchase of the new car;

    -    She was surprised that her husband’s earnings from Wunderbar, Adecco and Acme were not correctly recorded as she had told Centrelink about the issues he had getting a job locally and that he had to work away in Melbourne; and

    -    She was not sure whether the income attributed to her husband was correct, she felt it might be too low.

31. During cross-examination the Applicant:

    -    Confirmed that her 2014 income tax return listed an amount of $5,000 as being salary or wages derived from her business;

    -    Advised that she did not agree that the amount for 2014 was the actual amount;

    -    Confirmed that her 2015 income tax return listed an amount of $10,000 as being salary or wages derived from her business;

    -    Confirmed that the evidence supplied by Wunderbar Aluminium Products that Mr Oule started employment on 6 November 2014 and for the pay period
    6 November 2014 to 12 November 2014 he earned a gross amount of $801.04. That she reported the income at a Centrelink office in November 2014. She remembers going in because they had moved house, she had found out she was pregnant and had begun to get quite ill and went into Centrelink to tell them her husband had got a job, however she did not have payslips to hand in;

    -    Confirmed that the Centrelink letters dated 19 November 2014, 17 December 2014 in relation to her parenting payment listed her partners income as $0.00, however said that she had not read the letters until now – she was receiving them online but was ill at the time as she had just learned she was pregnant;

    -    Confirmed she was still running the business on and off around that time, she was just collecting the money and sitting down to attend to the books;

    -    When asked by the Respondent why she could attend to the books of her business but not to her Centrelink payments the Applicant told the Tribunal that she had to attend the books because the accountant required this for the GST reporting, she could not avoid it;

    -    Confirmed the earning of Mr Oule from Acme 1 Pty Ltd between 15 August 2013 and 15 May 2014 as set out in T20. However, disagreed that her husband stopped work in May 2014;

    -    Confirmed that a Centrelink file note dated 16 June 2014 stated: “customer called to advise partner has ceased employment as of 2/05/2014 due to that they lived in Shepparton and partner worked in Bendigo which is 1 hour and 45 minutes away.  Partner will call to see if eligible for any assistance from Centrelink. Zero’d earnings for partner and advised customer of future payments.” However, the Applicant said the file note was incorrect;

    -    Confirmed that Mr Oule commenced employment with Wunderbar Aluminium Products on 6 November 2014 but that he had only just finished his other job a few days before;

    -    Confirmed that a Centrelink file note dated 4 March 2014 stated: “Client advised is now married, issued becoming partnered forms to be completed. Rang client for SJF appointment, client unable to come at present as now married, in NSW at present.  Client stated was married last week. Sent becoming partnered forms in mail. Unable to talk as client was driving in car and on phone.” However the Applicant said the file note was not correct – it was about someone else; and

    -    Confirmed that the document at T4 labelled “Parenting Payment. Change of Relationship Status. Becoming Partnered” had a date stamp of 14 March 2014 and that she had completed it and dated it 8 March 2014.

32. Based on the evidence before the Tribunal it is clear that the Applicant’s PP payment was calculated during the period 22 November 2012 to 17 June 2015 based on incorrect information regarding the Applicant’s marital status and actual earnings and incorrect information regarding the Applicant’s husband’s actual earnings. Consequently, regardless of the circumstances surrounding why the Applicant’s information was incorrectly reported/recorded by the Respondent, the Applicant was paid more PP than she was entitled to receive.

33. While I accept the Applicant’s evidence in relation to her accepting advice from her accountant in relation to completing her income tax return, and in relation to how to manage her business, this does not change the fact that she has declared the amounts of $5,000 and $10,000 for the 2014 and 2015 income tax years as salary or wages derived from her business. 

34. There is no corroborating evidence before the Tribunal that these amounts should be classified as anything other than an amount earned, derived or received for the Applicant’s own use or benefit. Therefore, these amounts are considered income for the purposes of the SS Act. The amounts withdrawn that were declared in the Applicant’s income tax returns differs to those she told the Tribunal at hearing and again to those disclosed in her written submissions. There is no evidence before the Tribunal of how much money the Applicant withdrew from her business during this period or when any such withdrawals occurred.

35. It is open for individuals to manage their business and taxation affairs as they see fit, however they must also be prepared for any impact the decisions they make in this regard may have on their entitlements to social security payments.

36. In relation to the calculation of the PP debt there is no evidence before the Tribunal to suggest that the debt raised is incorrect.  For the reasons set out at paragraphs 100 to 102 above, I do not accept the Applicant’s argument that the income she derived from her business should not be attributed across the year rather than only to the fortnight when she withdrew the money.

37. Consequently, I find that the Applicant received more than her entitlement of PP for the period 22 November 2012 to 17 June 2015 and that there is no evidence before the Tribunal that the debt calculation is incorrect.

38. Based on the evidence before the Tribunal, I find that the Applicant received more PP than she was entitled to for the period 22 November 2012 to 17 June 2015 and as such this overpayment is a PP debt owed to the Commonwealth.

    ARE THE DEBTS RECOVERABLE?

1. As I have found that the FTB, RA and PP debts exist, I must consider whether the debts must be repaid.

2. It is generally expected that debts to the Commonwealth resulting from overpayments 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 that they are not entitled to received will be recovered, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the persons concerned.

3. 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 PP debts, the Respondent may write off, or waive, her PP debts if the requirements set out in sections 1236, 1237A or 1237AAD of the SS Act are met. Relevant to the Applicant’s FTB and RA debts, the Respondent may write off, or waive, her FTB and RA debts if the requirements set out in sections 95, 97, 101 of the FAA Act are met.

   Should the Applicant’s PP, FTB and RA debts be written off pursuant to sections 1236 of the SS Act and section 95 of the FAA Act?

4. Section 1236 of the SS Act applies in relation to whether the Applicant’s PP debts for the periods 13 October 2011 to 21 November 2012 and 22 November 2012 to 17 June 2015 should be written off.

5. Section 95 of the FAA Act applies in relation to whether the Applicants FTB debts for the 2013-2014 and 2014-2015 financial years and RA debt for the period 4 January 2017 to

   
   

   1 March 2017 should be written off.

6. Section 1236(1) of the SS 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.

7. Section 1236(1A) of the SS Act allows the Respondent to decide to write off a debt if and 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.

8. Section 1236(1B) of the SS Act provides that for the purposes of paragraph (1A)(a), a debt is taken to be irrecoverable at law if, and only if:

   (a)the debt cannot be recovered by means of deductions, or legal proceedings, or garnishee notice, because the relevant 6 year period mentioned in section 1231, 1232 or 1233 has elapsed; or

   (aa) ….. or

   (b)there if no proof of the debt capable of sustaining legal proceedings for its recovery; or

   (c)the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or

   (d)the debtor has died leaving no estate or insufficient funds in the debtor’s estate to repay the debt.

9. Section 1236(1C) of the SS Act provides that for the purposes of paragraph (1A)(b), if a debt is recoverable by means of:

   (a)Deductions from the debtor’s social security payment; or

   (b)Deductions under section 84 of the A New Tax System (Family Assistance) (Administration) Act 1999; or

   (c)Setting off under section 84A of that Act;

   The debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the debtor being in severe financial hardship.

10. The term severe financial hardship is not defined in the SS Act, however, has been considered by the Tribunal in a number of cases.

11. In Re Lumsden and Secretary Department of Social Security (1986) 10 ALN N225 the Tribunal considered that for financial hardship to be established, a person’s entire financial positon would need to be materially less than the current rate of pension.

12. In Re Stubbs and Secretary Department of Families Community Services (2003) AAT 03/0729 the Tribunal remarked that:

    …Severe financial hardship, while not implying destitution, goes beyond straitened financial circumstances and imports a need for the particular case of a person to include financial suffering of a severe or extreme nature ….

13. In L v Department of Social Security No N94/272 AAT No. 10230 (1995) 38 ALD 176 the Tribunal stated:

    66.  In summary, I consider that matters relating to the personal financial hardship of the individual are always relevant in any decision as to write off under subsection 1236(1). Retrospective considerations may occasionally be relevant. The essential inquiry will always be whether recovery is a feasible proposition, bearing I mind the financial means and obligations of the individual concerned.  Will recovery cause such personal hardship as to run contrary to the beneficial nature of the legislation ….

14. Section 95(1) of the FAA Act provides that the Respondent may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise, but only if subsection (2),(4A) or (4B) applies. Relevantly section 95(2) of the FAA Act allows the Respondent to decide 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.

15. Section 95(4) of the FAA Act provides that for the purposes of paragraph (2)(b), if a debt is recoverable by means of:

    (a)Deductions under section 84; or

    (aa)Deductions under section 1231 of the Social Security Act 1991; or

    (b)Setting off under section 84A family assistance; or

    (c)Application of an income tax refund under section 87; or

    (d)Setting off under section 87A against a payment referred to in paragraph 82(2)(a);

    the person is taken to have capacity to repay the debt unless recovery by those means would cause the person severe financial hardship.

16. The term severe financial hardship is not defined in the FAA Act however has been considered by the Tribunal in a number of cases in relation to section 97 of the FAA Act. 

17. In Jones and Secretary to the Department of Family and Community Services [2003] AATA 62 (22 January 2003) the Tribunal remarked:

    25. However, the Tribunal was also satisfied that s97 could not apply as the applicant has not established severe financial hardship. The family is struggling. The Tribunal accepts that, in reality, their financial situation is not significantly different, despite their salaries, from that of people who receive social security. However, the term severe financial hardship must be seen in the context of the legislation. With income of $50,000.00 being well in excess of income support payments under the Act, severe financial hardship is not shown.

18. In Klaverstyn and Secretary, Department of Family and Community Services [2—3] AATA 71 (24 January 2003) the Tribunal remarked:

    31. In my opinion it would not be useful to conduct a detailed analysis of the applicant's financial circumstances either at the time he appeared before the Social Security Appeals Tribunal or at the present time. There is no substantial difference in his position then and now. He owns a mobile home and furniture and he has nearly paid off a station wagon. He has no other assets. He owes a number of debts totalling about $2,450 which he is paying off. He has a disability support pension of $502.00 per fortnight and he keeps $85.00 out of the $165.00 per fortnight paid as his daughter's youth allowance. He allows her the balance of $80 for her personal expenses.

    32. He has no savings or cash reserves as his fortnightly expenses exceed his income. Like many people who are dependent on Commonwealth benefits he finds it difficult to make ends meet. He is substantially disabled with a spinal condition and it is unlikely that he will ever be able to secure paid employment. He does some volunteer work as a first aid instructor. In my opinion it will be difficult for him to repay the Commonwealth debt of $686.00, even at the rate of $30,00 per fortnight.

    33. However, difficulty is not the same as severe financial hardship. I am not persuaded that repaying the debt will cause the applicant to suffer severe financial hardship. Accordingly, even if I were satisfied that the debt was attributable to Commonwealth administrative error, the applicant would not have satisfied me that the debt should be waived under section 97.

19. The Respondent submitted that section 1236 of the SS Act and section 95 of the FAA Act have no application in the present matter as there is no evidence that the debt is irrecoverable or that the Applicant has no capacity to repay the debt, and the Applicant’s whereabouts are currently known. The Respondent further submits that it is cost effective for the Commonwealth to take action to recover the debt.[78]

    [78] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, page 11, paragraph 70; and, page 14, paragraph 78.

20. The Respondent contends that recovery by means of repayment would not result in the Applicant being in severe financial hardship pursuant to section 1236(1C) of the SS Act or section 95(4) of the FAA Act.[79]

    [79] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, page 11, paragraph 72; and, page 14, paragraph 78.

21. The Applicant provided a statement of financial position document to the Tribunal dated

    
    

    7 February 2019 setting out her and her husband’s fortnightly income and expenses. This document provided that the Applicant was receiving $575.62 per fortnight in

    
    

    Family Tax Benefits as well as $780.61 per fortnight as her half of the rent received for her rental property.  The Applicant’s husband’s total fortnightly income is listed as being $2,274.33.  This is a combined income of $3,630.56.  The Applicant has outlined her household fortnightly expenditure as being $2,573.00 which shows a surplus of funds per fortnight of $1,057.56. [80]

    [80] Exhibit 5, Statement of Financial Position – Individual, dated 7 February 2019.

22. The Applicant also stated that:

    We occasionally get assistance from Vinnies with food and medical vouchers.  Since I do not have employment, we require assistance occasionally.  On average every two months.[81]

    [81] Exhibit 5, Statement of Financial Position – Individual, dated 7 February 2019.

23. In her application for review in which the Applicant responded to the decision of the SSCSD she stated:[82]

    We are a couple with two children. I have filled out our income and expenses form sent by AAT, we are in deficit.  I am not working and we heavily rely on Mr Oule’s wage and my FTB payments. We are often in the red often getting vouchers from various not-for-profit organisation. How can the conclusion be that we can afford it?

    [82] Exhibit 1, T-documents, T1, Page 5, Application for review.

24. At the Hearing the Applicant told the Tribunal that:

    -    She could not afford any debt amount;

    -    Her family was already in severe financial hardship, that they are getting some income, and for parts of the month they are ok, however every three months the outgoings for their rental property come in; and

    -    The rental property is negatively geared.

25. On cross-examination by the Respondent the Applicant:

    -    Confirmed that she had written the amounts on the statement of financial circumstances document as set out in paragraph 135 above;

    -    Disputed the surplus fortnightly income that is shown on the statement of financial circumstances document – the Applicant said that she may have missed something as that is not the situation they are finding themselves in, so she must have missed other bills or other things; 

    -    Said that from time to time she gets assistance from Reverend Paul and Vinnies and that the assistance includes meat, fruit and vegetable and medical vouchers and sometimes meat, fruit and vegetable parcels;

    -    When asked whether she receives assistance from anywhere else the Applicant said no.  When asked whether she receives assistance from migrant organisations, the Applicant said no.  The Respondent showed the Applicant a Centrelink file note dated 5 December 2018 which stated:

    During CRU call, I identified that her PP was suspended due to missing Parents Next apt. Cus advised she was called regarding this but declined to have apt as she does not want to provide any further information to CLK as we always delete or lose it later.  I advised repercussions of not having apt and PP remaining suspended. Customer understood and stated that she is not bother to have PP cancelled as she receives financial support from migrant organisations and does not need this payment.  I advised estimate will need to be updated to ensure FTB and CCS are not impacted.  Customer advised estimate on file was updated by her online and is still current; [83] and

    -    Told the Tribunal the Centrelink officer misunderstood the conversation and that she had confirmed that she no longer wanted to received parenting payment and when she was asked what would she do if she needed assistance she said that migrants will not let other migrants be without anything and that she has her migrant community and her church community and if she is ever in financial difficult she has them to turn to.

    [83] Exhibit 9, Centrelink customer contact notes dated 5 December 2018.

26. I accept that the Applicant’s financial circumstances may be strained and at times she seeks assistance as required. It is noted that the Applicant provided a Statement of Financial Circumstances (Centrelink reviews) dated 6 August 2018,[84] which provides different information to that of the Statement she provided dated 7 February 2019.[85]  While the Applicant told the Tribunal that the information she provided in the Statement dated 7 February 2019 was incorrect she did not provide any further evidence or explanation that contradicts that her current financial situation is different to that she had disclosed on that Statement.

    [84] Exhibit 1, T-documents, T124, pages 1028-1032, Statement of Financial Circumstances.

    [85] Exhibit 5, Statement of Financial Circumstances.

27. Based on the evidence before the Tribunal, I am satisfied that the PP, FTB and RA debts are recoverable at law, the Applicant’s whereabouts are known and that it is cost effective for the Commonwealth to take action to recover the debts.

28. On the basis that the Applicant is in receipt of FTB, receives rental income, her husband is employed, the Statement of Financial Position document provided shows a fortnightly funds surplus and that the Applicant has chosen to no longer receive PP regardless of whether she is entitled to it or not, I am satisfied that the Applicant has the capacity to repay the debts and if payment was deducted from payments being made to the Applicant pursuant to section 1236(1C) of the SS Act or 95(4) of the FAA Act this would not result in the Applicant being in severe financial hardship.

29. Consequently, I find that the Applicant’s PP, FTB and RA debts cannot be written off pursuant to section 1236 of the SS Act or section 95 of the FAA Act.

    Should the Applicant’s PP, FTB and RA debts be waived due to sole administrative error pursuant to sections 1237A of the SSA Act and section 97 of the FAA Act?

30. Section 1237A of the SS Act applies in relation to whether the Applicant’s PP debts for the periods 13 October 2011 to 21 November 2012 and 22 November 2012 to 17 June 2015 should be waived due to a sole administrative error being made by the Respondent.

31. Section 95 of the FAA Act applies in relation to whether the Applicants FTB debts for the 2013-2014 and 2014-2015 financial years and RA debt for the period 4 January 2017 to    1 March 2017 should be waived due to a sole administrative error being made by the Respondent.

32. Section 1237A of the SS 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.

33. Section 97 of the FAA 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 and the person would suffer severe financial hardship if it were not waived.

34. Selway J, in Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190 at paragraph [35] 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.

    PP Debts

35. The Respondent contends that there has not been an operative (sole) administrative error on the part of the Department in relation to the Applicant’s PP debts, as the notices issued to the Applicant under subsection 68(2) of the SSA Act clearly required her to inform the Department of changes to her circumstances, which included her marital status and income.[86] The Respondent contends that they did not receive the correct details of the Applicant’s marital status until 4 March 2014 at which point further investigation and queries commenced in relation to the Applicant’s income from employment and her company and her partner’s income. Evidence in relation to Mr Oule’s income was not received until August 2015.[87]

    [86] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, page 15, paragraph 80.

    [87] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, page 15, paragraph 82.

36. The Respondent further contended that even if the Tribunal accepts that the Applicant provided earlier notification of her change in marital status, the Applicant had failed to notify the Respondent of her financial circumstances, or Mr Oule’s income from employment, and her failure to do so also contributed to the debts.[88]

    [88] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, page 15, paragraph 84.

37. As set out previously, the Applicant’s main contentions are that she had provided information in relation to getting married to Mr Oule and in relation to her business which were not processed when she submitted it and that in acting on advice from her accountant, while she did draw funds from her company those drawings should only be applied to the relevant fortnight income for PP rate calculations not attributed across the whole year.

38. In addition, at Hearing, the Applicant told the Tribunal that:

    -    She went to Centrelink shortly after receiving a parenting payment letter (received in December 2012) and was told that because her husband is not a permanent resident she was technically still a single person;

    -    She was not going to Centrelink to get more money but to tell them about her getting married, she said that to her as there was an extra person in the household she thought the money would be more not less;

    -    When she went to a Centrelink office in 2017 she was provided with further conflicting advice regarding whether she was considered single or partnered for PP as her husband was not a resident; and

    -    There were glitches with the myGov system that meant her changes and information were not being processed properly and documents disappeared on a number of occasions.

39. There is no evidence before the Tribunal that corroborates the Applicant’s contentions that she had provided the Respondent with notification of her change of marital status, accurate details of her or her husband’s income or details of her business prior to when the relevant documents were recorded as being received by the Respondent (as outlined above).

1. In relation to the Applicant notifying the Respondent of the change in her marital status the ARO on 5 June 2018 stated: “You had contact with the department on 19 June 2013 and it was noted your husband had arrived in Australia and was settling in well.”[89] The ARO considered that given the Applicant’s account was still linked with Mr Markson and your separation from Mr Markson was not specifically recorded on the Centrelink system it was ‘fair to say, the department was of the understanding you were referring to Arnold Markson [in relation to the contact dated 19 June 2013].’[90]

   [89] Exhibit 1, T-documents, T11, page 216, Decision and notes of Authorised Review Officer.

   [90] Exhibit 1, T-documents, T11, pages 217-218, Decision and notes of Authorised Review Officer.

2. Outside of the contact on 19 June 2013 there is no evidence before that Tribunal that indicates that the Applicant notified the Respondent of her change in marital status before the notification on 4 March 2014. The full extent of the contact on 19 June 2013 is not clear, as such it is not possible to conclude that it was unreasonable for the Respondent to consider that the Applicant was referring to Mr Markson who had previously been residing overseas. It is noted that there is no evidence before the Tribunal that corroborates the Applicant’s contentions that she had notified the Respondent of her marriage at a Centrelink office at the end of 2012.

3. Based on the evidence before the Tribunal, I find that the Applicant’s incorrect estimates of her income and late provision of updates to her business details contributed to her PP debt for the period 13 October 2011 to 21 November 2012.  Further, I find that the Applicant’s delayed notification of her change in marital status, incorrect estimates of her and her husband’s income and late provision of updates to her business details contributed to her PP debt for the period 22 November 2012 to 17 June 2015.

4. While there may have been issues with the myGov system and errors made by officers of the Respondent, I am not satisfied that the Applicant’s PP debts were a result of a sole administrative error. Consequently, I find that the Applicant’s PP debts cannot be waived pursuant to section 1237A of the SS Act.

   FTB Debts for the 2013-2014 financial year

5. The Respondent contends that the Applicant’s FTB debt for the 2013-2014 financial year resulted as she underestimated her income and received FTB at a higher rate than she was entitled to and that consequently there was no sole administrative error.[91]

   [91] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, page 17, paragraph 94.

6. As outlined above in paragraphs 54 to 57 the Applicant’s FTB debt in relation to the   2013-2014 income tax year arose as a consequence of her lodging her income tax return after 30 June 2015 and her reconciled personal earnings being greater than the estimates that had been provided to the Respondent.

7. Based on the information before the Tribunal it is clear that the Applicant’s FTB debt in relation to the 2013-14 financial year was not raised due to sole administrative error.  Further as set out above at paragraphs 134 to 142 the applicant would not suffer severe financial hardship if the debt is not waived.

8. Consequently, I find that the Applicant’s FTB debt for the 2013-2014 financial year cannot be waived pursuant to section 97 of the FAA Act.

   FTB Debt for the 2014-15 financial year

9. The Respondent contends that the Applicant’s FTB debt for the 2014-2015 financial year resulted as she underestimated her income and received FTB at a higher rate than she was entitled to and that consequently there was no sole administrative error.[92]

   [92] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, page 17, paragraph 94.

10. As outlined above in paragraphs 68 to 72 the Applicant’s FTB debt in relation to the   2014-2015 income tax year arose as a consequence of both her and her husband’s actual taxable income being greater than their estimated income that was reported to the Respondent for the purposes of calculating the Applicant’s rate of FTB.

11. Whilst the Applicant contended that the Respondent had not correctly updated her husband’s estimated income when she updated it together with her estimate, there is no evidence to support this contention.

12. Based on the information before the Tribunal it is clear that the Applicant’s FTB debt in relation to the 2014-2015 financial year was not raised due to sole administrative error.  Further as set out above at paragraphs 134 to 142 the applicant would not suffer severe financial hardship if the debt was not waived.

13. Consequently, I find that the Applicant’s FTB debt for the 2014-2015 financial year cannot be waived pursuant to section 97 of the FAA Act.

    RA Debt for the period 4 January 2017 to 1 March 2017

14. The Respondent contends that although the Applicant tried updating her record on           4 January 2017 she was notified on at least four occasions after that date, that her rate of payment was still incorrect and that rent assistance continued to be paid to her, therefore as she failed to take any action pursuant to the notices there was no sole administrative error.[93]

    [93] Exhibit 3, Secretary’s Statement of Issues, Facts & Contentions, page 17, paragraph 95.

15. As outlined above in paragraphs 74 to 78 it is clear that the Applicant’s RA debt in relation to the period 4 January 2017 to 1 March 2017 arose as a consequence of the Applicant’s online notification which was commenced on 4 January 2017 not being finalised until        7 March 2017.

16. Whilst the Applicant contended that her address had been updated in October or November 2016 and that the Respondent did not make the appropriate updates, there is no evidence to support this contention.

17. Based on the information before the Tribunal it is clear that the Applicant’s RA debt in relation to the period 4 January 2017 to 1 March 2017 was not raised due to sole administrative error.  Further as set out above at paragraphs 134 to 142 the Applicant would not suffer severe financial hardship if the debt was not waived.

18. Consequently, I find that the Applicant’s RA debt for the period 4 January 2017 to 1 March 2017 cannot be waived pursuant to section 97 of the FAA Act.

    Should the Applicant’s PP, FTB and RA debts be waived due to special circumstances pursuant to sections 1237AAD of the SS Act and section 101 of the FAA Act?

19. Section 1237AAD of the SS Act applies in relation to whether the Applicant’s PP debts for the periods 13 October 2011 to 21 November 2012 and 22 November 2012 to 17 June 2015 should be waived due to the presence of special circumstances.

20. Section 101 of the FAA Act applies in relation to whether the Applicants FTB debts for the 2013-2014 and 2014-2015 financial years and RA debt for the period 4 January 2017 to   1 March 2017 should be waived due to the presence of special circumstances.

21. Section 1237AAD of the SS 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.

22. Section 101 of the FAA 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 the family assistance law; 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.

23. The Respondent accepts that there is no evidence that the Applicant knowingly failed to comply with subsection 68(2) of the SSA Act or section 25 of the FAA Act. The Respondent contends however that the Applicant was reckless in failing to inform of her correct circumstances and therefore the Applicant knowingly failed to comply with section 68(2) of the SSA Act and section 25 of the FAA Act.[94]

    [94] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, pages 18-19, paragraphs 106 to 110 and page 21, paragraph 120.

24. The Respondent contends that section 1237AAD of the SS Act and section 101 of the FAA Act cannot apply as the Applicant’s circumstances are not special.[95]

    [95] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, page 19, paragraph 111 and page 21, paragraph 121.

25. Neither the SS Act or the FAA Act provides 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.[96]

    [96] 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, Dept 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].

26. 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.

27. 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.

28. The Respondent contends that when the circumstances of the Applicant’s case are considered in their entirety, including the circumstances giving rise to the overpayment, it cannot be said that the circumstances in this case warrant the exercise of the discretion in section 1237AAD of the SS Act.[97]

    [97] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, page 21, paragraphs 118 and 121.

29. In her application for review the Applicant stated that she believes that special circumstances apply to her case.[98]

    [98] Exhibit 1, T-documents, T1, Page 5, Application for review.

30. At Hearing the Applicant told the Tribunal that:

    -    She is not a reckless person;

    -    She would like the Tribunal to consider the application of special circumstances, because she has gone through a lot with Centrelink;

    -    She is a person of high integrity, she had run for council, had assisted other migrants with dealing with Centrelink and explaining them their duty and responsibility;

    -    She cannot afford to repay a debt;

    -    She was ill in 2014 – 2015 due to a difficult pregnancy (as set out above at paragraphs 60 and 61);

    -    Her son is ill and requires medication and as a consequence she is considering moving her family out of Queensland; and

    -    Her financial situation is difficult (as set out above at paragraphs 135-139).

31. I accept that the Applicant had a number of stressful personal circumstances arise during the debt periods of 2011 to 2017, she relied on the advice of her accountant, that she did not intentionally fail to notify Centrelink of the relevant changes to her circumstances and she has strained personal finances.

32. However, despite this, 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 SS Act or section 101 of the FAA Act to waive the debt. The Applicant’s circumstances are not markedly different to those of other social security recipients.

33. Consequently, I find that the Applicant’s PP, FTB and RA debts cannot be waived pursuant to section 1237AAD of the SS Act or section 101 of the FAA Act.

    CONCLUSION

34. I find that the:

    (a)Applicant was paid more than her correct amount of family tax benefit for the   2013-2014 financial year;

    (b)Applicant was paid more than her correct amount of family tax benefit for the   2014-2015 financial year;

    (c)Applicant was paid more than her correct amount of parenting payment for the period 13 October 2011 to 21 November 2012;

    (d)Applicant was paid more than her correct amount of parenting payment for the period 22 November 2012 to 17 June 2015;

    (e)Applicant was paid more than her correct amount of rent assistance for the period 4 January 2017 to 1 March 2017;

    (f)Applicant’s family tax benefit, parenting payment and rent assistance debts are debts owed to the Commonwealth;

    (g)Requirements of sections 1236, 1237A and 1237AAD of the SS Act in relation to the Applicant’s parenting payment debts are not met;

    (h)Requirements of sections 95, 97 and 101 of the FAA Act in relation to the Applicant’s family tax benefit debts are not met; and

    (i)Applicant’s family tax benefit, parenting payment and rent assistance debts are recoverable in full.

35. Accordingly, the decision under review is affirmed.

I certify that the preceding 188 (one hundred and eighty-eight) paragraphs are a true copy of the reasons for the decision herein of            Member D Mitchell

.................................[SGD].......................................

Associate

Dated: 30 May 2019

Dates of hearing:	28 February 2019
Applicant:	In Person
Advocate for the Respondent:	Ms Jasmine Forsyth
Solicitors for the Respondent:	Department of Human Services