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

[2021] AATA 3149

Palmer and Secretary, Department of Social Services (Social services second review) [2021] AATA 3149 (3 September 2021)

Division:                  GENERAL DIVISION

File Number:          2020/2321

Re:Deborah Palmer

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Brigadier AG Warner, AM, LVO (Retd), Member

Date:3 September 2021

Place:Perth

The Reviewable Decision, being the decision of the authorised review officer dated 2 December 2019, as affirmed by the AAT1 on 25 March 2020, is affirmed.

........................[Sgd]...............................................

Brigadier AG Warner, AM, LVO (Retd), Member

CATCHWORDS

SOCIAL SECURITY – family tax benefit – whether applicant was overpaid family tax benefit – whether debt due to commonwealth – whether debt should be recovered – whether write off or waiver provisions available – sole administrative error – special circumstances – whether debt can be written off – decision affirmed

LEGISLATION

A New Tax System (Family Assistance) Act1999 (Cth) – ss 1237A(1)

A New Tax System (Family Assistance) (Administration) Act 1999 – ss 71, 95, 95(2), 97, 97(2)(a), 101, 101(c)

CASES

Angelako v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9

Beadle and Director-General of Social Security (1984) 6 ALD 1

Davy and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 693

GGGD and Secretary, Department of Social Services [2020] AATA 802

Groth v Secretary, Department of Social Security (1995) 40 ALD 541

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Re Gerhardt and Secretary, Department of Employment, Education and Training [1996] AATA 173

Secretary, Department of Family & Community Services v Sekhon (2003) 73 ALD 41

Secretary, Department of Social Services v Hales (1998) 51 ALD 695

SECONDARY MATERIALS

Department of Social Services, Guides to Social Policy Law: Family Assistance Guide 

REASONS FOR DECISION

Brigadier AG Warner, AM LVO (retd), Member

3 September 2021

INTRODUCTION

1. The Applicant seeks review of a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (the AAT1), dated 25 March 2020 (Reviewable Decision). The Reviewable Decision affirmed an earlier decision of an authorised review officer (ARO) of the Department of Human Services, now Services Australia (Centrelink), dated 2 December 2019, which raised a Family Tax Benefit (FTB) debt of $3,776.96 for the period 7 March 2019 to 30 June 2019 (Debt Period).

2. FTB is a two-part payment that helps the eligible families with the cost of raising children. FTB Part A is a payment that is paid per child and the amount paid depends on family circumstances. Part B is a payment that is paid per family and can be paid to a single parent carer, a grandparent carer, or a member of a couple with one main income and is subject to an income test.

3. In this matter, the Applicant had been receiving Austudy when she was not entitled to, due to the combined income of the Applicant and her husband being above the income threshold limit for the purpose of receiving Austudy. When Centrelink became aware, the Applicant’s Austudy was cancelled, her FTB entitlement was recalculated and consequently a FTB debt was raised. The Applicant does not dispute that she was overpaid FTB as a consequence of her receiving Austudy that she had received without entitlement. However, the Applicant believes that the resultant debt should not be recovered because of the circumstances of the grant and payment of her Austudy.

4. The hearing was conducted by telephone conference on 29 July 2021. The Applicant was self-represented, and the Respondent was represented by Ms Alexandra Cornfield of Sparke Helmore Lawyers.

5. The Applicant gave oral evidence on affirmation and was cross-examined by Ms Cornfield. The Applicant called her husband and her mother as witness and they both gave evidence on affirmation and were cross-examined by Ms Cornfield.

6. Ms J, the Applicant’s another witness, provided a witness statement (ST5/112) but late-notice commitments precluded her participation in the hearing. The parties agreed that the hearing should proceed without Ms J’s participation (Transcript/17–18).

   BACKGROUND

7. On 7 March 2019, the Applicant lodged an online claim for Austudy and on the claim form the Applicant advised that she was partnered and that her income from part-time work was $211.41 per fortnight (T4/145–151). No information was provided regarding her husband’s income. On that same day, the Applicant further lodged a statement that her employment hours had decreased, and therefore she would now receive income of approximately $148 per week (T5/152).

8. On 8 March 2019, Centrelink granted the Applicant Austudy with effect from 7 March 2019 (T6/157). On that same day, Centrelink sent a notice advising the Applicant that her FTB Part A payment was exempt from the income test because she is already in receipt of an income support payment. The notice further advised the Applicant to inform Centrelink, as soon as possible, if there were any changes to her or her partner’s income (T6/154).

9. Centrelink sent the Applicant further notices on 13 March 2019 and 20 March 2019 regarding her Austudy payments and the requirement to advise Centrelink of any changes in her circumstances (T6/160;163).

10. On 29 July 2019, Centrelink reconciled the Applicant’s entitlement to FTB for the financial year 2018-19. The notice specifically stated that Centrelink have assessed the Applicant “for a Single Income Family Supplement” and this has been included in the amount paid to the Applicant (T6/173). Further, as the Applicant was an Austudy recipient, her FTB Part A entitlement was exempted from the income test during the Debt Period.

11. On 30 July 2019, in a contact with Centrelink regarding her FTB reconciliation, the Applicant   was informed that their earnings for the financial year were too high and were a lot higher compared to previous years income estimate and actual taxable income (T17/291). Subsequently on 24 September 2019, Centrelink requested payslips for the Applicant and her husband for the period 7 March 2019 to 30 September 2019 (T6/175).

12. On 8 November 2019, the Applicant provided the requested information (T17/293; T13; T14; T15) and thereafter Centrelink cancelled the Applicant’s Austudy payments and raised a FTB debt of $3,776.96 for the Debt Period (T6/177; T7/181).

13. On 14 November 2019, the Applicant requested a review of Centrelink’s decision, which raised a FTB debt of $3,776.96 for the Debt Period, and on 2 December 2019, an ARO affirmed Centrelink’s decision (T17/302; T10/188–192). The ARO decision is summarised in the Secretary’s Statement of Facts & Contentions dated 10 September 2020 (the SFC) as follows (Exhibit R1, para [17]):

    The ARO affirmed the cancellation of the Applicant’s Austudy from 7 March 2019 due to the Applicant exceeding the income limits on the basis that her partner’s income had not been taken into account. The ARO found that because the Applicant was not entitled to Austudy during the debt period, she was not entitled to the exemption from the income test in relation to her FTB Part A payment during the same period. The ARO concluded that the FTB debt could not be written off or waived.

14. On 6 January 2020, the Applicant requested a review by the AAT1 (T11/198). The AAT1 conducted a hearing on 12 March 2020 and requested further information from Centrelink (ST2/6). Centrelink provided the requested information on 18 March 2020 (ST2/6–107), and by a decision dated 25 March 2020, the AAT1 affirmed the decision under review (T2/5–14).

15. On 22 April 2020, the Applicant applied for a review by General Division of the Administrative Appeals Tribunal (the Tribunal), and stated in her application: “I think the decision was incorrect, and it should be looked into again” (T1/4).

16. In the “Statement of Financial Circumstances (Centrelink reviews)” form dated 8 February 2020 (ST1/1–5), the Applicant advised that her husband earns gross income of $4,298.44 per fortnight. The Respondent states in the SFC that: “The Applicant is presently in receipt of FTB payments of $645.82 per fortnight. As at the date of writing, the Applicant had not made any repayments of the debt and there was no arrangement in place to do so” (Exhibit R1, para [23]).

17. The Applicant, during her closing submissions, told the Tribunal that her mother has now settled the FTB debt (Transcript/19).

    ISSUE

18. The Applicant has accepted that she was not entitled for Austudy from 7 March 2019, and therefore the decision to cancel the Austudy payment, due to her combined family income being in excess of the income limits, is not in dispute (T2/6; Transcript/7).

19. The issue in this matter that the Tribunal must decide is whether the Applicant was overpaid FTB during the Debt Period, if so whether she incurred a recoverable debt due to the Commonwealth, and if so are there any grounds to write off or waive recovery of any or all of the debt.

    LEGISLATIVE FRAMEWORK

20. The legislation applicable to this matter is contained in the A New Tax System (Family Assistance) Act 1999 (the Act) and the A New Tax System (Family Assistance) (Administration) Act 1999 (the Administration Act).

21. The relevant policy is contained in the Family Assistance Guide (the Guide). The Tribunal, as a decision maker, will generally apply the guidance contained in the Guide unless there are cogent reasons for departing from its application (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 644–5).

    EVIDENCE

22. The Tribunal had before it the following evidence:

    ·the “T Documents” (T1–T18, pp 1–447);

    ·supplementary “T Documents” (ST1–ST6, pp1–113);

    ·Applicant’s submissions, filed on 19 August 2020 (Exhibit A1);

    ·extract of Centrelink web-page dated 12 November 2019 (Exhibit A2);

    ·extract of Centrelink web-page dated 3 September 2018 (Exhibit A3);

    ·extract of Centrelink web-page dated 1 July 2019 (Exhibit A4);

    ·extract of Centrelink web-page dated 1 July 2018 (Exhibit A5);

    ·Secretary’s Statement of Facts and Contentions, dated 10 September 2020 (Exhibit R1);

    ·the oral evidence of the Applicant’s husband, Mr P;

    ·the oral evidence of the Applicant’s mother, Mrs B; and

    ·the oral evidence of the Applicant.

    CONSIDERATION

23. The Applicant in her submission (Exhibit A1) states:

    As of July 2018 I worked four shifts per week at IGA [address redacted], three shifts were evening shifts as night fill and one day shift as a cashier totalling 13 hours per week, Centrelink was aware of my employment and income estimate of $16647.00 and my husband’s employment and income estimate of $104768.00 and I was receiving family tax benefit part A & B. In August 2018 I started a Uniprep course full time and gave up my one day time shift leaving three night fill shifts of 9-10 hours, I informed Centrelink of the changes to my employment on the 3rd of September 2018 with my income estimate of $12500.00 and my husband’s remaining at $104768.00. I continued to work three shifts a week until 2019 when my employers lowered my shifts to twice a week as there was a downturn in the retail sector, and they were attempting to save money by reducing shifts in the night fill department. I have included screenshots of my Centrelink account which show my income estimates and the dates they were given.

    I had started university full time and was told I should apply for Austudy by fellow students. In March 2019 I applied, while filling in the forms, I included my husbands income as well as my own, when I came to the of the application the system informed me there was an error and said that I needed to take proof of identification in to my local Centrelink office, when the application summary loaded the page with my husbands income had emptied leaving it blank. I tried to redo the page, but it would not allow pages to be changed, I then tried to delete the application and start again however the system would not allow it, with the system claiming I had already applied so could not reapply.

    My husband and I had tried to find a clear income limit, however there was not a clear income limit on the Centrelink website at that time. When I took the application and identification into my local Centrelink office [address redacted] I had my mother with me as she had questions regarding her pension, when I spoke to the representative I explained the situation regarding the application error and she checked my account and stated clearly that my husband’s income was definitely entered into the system. This was witnessed by my mother [name redacted] who has signed a statutory declaration, which has been given already.

    When I received an email to say I was eligible for Austudy, I was at university and was quite surprised by this so I called the Austudy number to double check this was correct, as I spoke to the person at Austudy and they reassured me that my husbands income was included as well as my own my friend [name redacted] was sitting next to me and could clearly hear the conversation. I then asked to be transferred to the Family Tax Allowance department where I asked the same question of them and was informed that they had my husband’s income of $104768.00 recorded.

    As I had been assured by both departments that both of our incomes had been taken into consideration in the decision and my brother informed me that they had recently increased the income threshold I used the money to buy books, uniforms, medical supplies and equipment that I required for my course.

    In June 2019 I rang Centrelink to inquire why I had been sent a Concession card by Medicare, I was informed that as I was receiving Austudy I was eligible for a Concession card, I again asked them to check that they had both incomes as I had never been eligible for a Concession card before and they again assured me they did.

    In July 2019 I rang Centrelink to inform them of my final income for the tax year 2018/19 as well as my husband’s taxable income for 2018/19. In August 2019 I called Centrelink to enquire about my reconciliation payment as it was much less than previous years when I had overestimated my husband’s income by the same amount. I have always overestimated both of our incomes to ensure we do not get overpaid by Centrelink and in 2018/19 I received around $4000.00 less than the previous year of 2017/18.

    On the 24th of September 2019 I called to enquire about leaving my employment as they were cutting hours and changing my one remaining shift to a day that did not fit with my family commitments. Once again I informed the woman who I spoke to of my husband’s income and my income that was dropping to less than $70 per week. I was informed that my pay through Centrelink would only increase if I left my employment and continued studying full time, I was told to call back when I had my final income figure. With this information I resigned my position at IGA [address redacted], after which I received a letter from Centrelink asking me to send all payslips for both my husband and myself from 7th of march through to the 30th of September as the wanted them before the end of September I sent all available payslips.

    Due to a clerical error at my employers I did not get my final payslip for over a month and I called on the 8th of November to report what I had been paid from the July-October 2019. At this point the man I spoke to asked me to hold as there may have been an issue with payments. After he came back he would not say anything other than the assessment team would look into my case and I would hear something soon. On the following Monday morning my Concession card had been cancelled, and after checking my Centrelink App I discovered my Austudy had been cancelled and my payments had been reduced to less than when I was employed working 13 hours a week. I called the Austudy department and spoke to [name redacted] who said that there was an overpayment issue so I asked to speak to a manager and was put through to [name redacted] who stated clearly that she could see on the system that my husbands income was reported by telephone in April, June, July and September 2019, and she then placed an appeal on the decision immediately (Complaint ID [number redacted]) as I was given incorrect advice on many different occasions.

    After trying to see why my payments were lower than when I worked, and I was now unemployed, I was transferred through to the Family Tax Allowance department however the call disconnected and I was required to call back by this time I was crying and extremely worried as I had no income and a mortgage payment due, when the call was answered by a man named [name redacted] he was extremely aggressive when I was crying and shouted at me and threatened to disconnect the call and would not listen when I spoke to him, my friend [name redacted] was with me at this time and could hear the man shouting at me clearly, I asked again to speak to a manager and he told me I would have to go on hold and wait till he was ready to find someone. As I had been on the phone for several hours at this point I chose instead to hang up and instead the next morning my friend accompanied me to the [address redacted] [Centrelink], where again they could see that I had informed them of both my husband and my own incomes and the employee at Centrelink was also unable to find a clear threshold limit online and I was informed that I should not be required to pay the debt raised against me and I should continue to advance the issue further.

    As twice now Centrelink have failed to provide transcripts of ALL calls and visits that I have made, even after I supplied phone evidence of multiple calls, and no further training is supplied to staff, I object to being offered a settlement. After having done the right thing and giving all relevant information I have been left in a position of great financial hardship as it was impossible to gain employment over the Christmas period as all the holiday positions were already filled and soon after the COVID-19 crisis occurred and the job market has been flooded with people looking for work.

24. The Respondent contends that:

    (a)the Applicant was overpaid FTB of $3,776.96 and that the overpayment is a legally recoverable debt (Exhibit R1, para [28]);

    (b)recovery of the debt cannot be waived because it was not due to sole administrative error (Exhibit R1, para 43–44]);

    (c)the Applicant’s circumstances are not distinguishable from the usual case and the special circumstances waiver provision is not applicable (Exhibit R1, para [60]); and

    (d)it would be inappropriate to write off the debt under s 95 of the Administration Act (Exhibit R1, para [66]).

25. The Tribunal notes that the Respondent “does not contend that the Applicant did not receive the payment in good faith (s 97(2)(a) of the Administration Act)” (Exhibit R1, para [49]).  Further, having regard to the material before it, the Tribunal is satisfied that the Applicant received the FTB overpayment in good faith.

    Was the Applicant overpaid FTB?

26. In the Reviewable Decision (T2/7), the AAT1 stated:

    In this case the tribunal is satisfied that [the Applicant] was overpaid FTB in the amount calculated by the Department because during the debt period she was incorrectly being paid austudy which in turn meant that she received the incorrect rate of FTB Part A. Application of section 71 of the Administration Act means that the overpayment of $3.776.96 is a debt due to the Commonwealth.

27. In the present matter the following is not in dispute (T16/260–287):

    (a)that the Applicant was paid Austudy during the Debt Period for which there was no entitlement;

    (b)that during the Debt Period the Applicant’s FTB was paid at a higher rate because she was in receipt of an income support payment (Austudy); and

    (c)that because the Applicant was not entitled to Austudy she was not entitled to the higher rate of FTB and was therefore overpaid FTB in the amount of $3,776.96 pursuant to the Centrelink’s debt calculations.

1. Having regard to the material before it, the Tribunal like the AAT1, is satisfied that the Applicant was overpaid FTB in the amount of $3,776.96 during the Debt Period and the overpayment constitutes a debt due to the Commonwealth pursuant to s 71 of the Administration Act.

   Should the debt be waived or written off?

2. In the Federal Court decision of Secretary, Department of Social Security v Hales (1998) 51 ALD 695, French J commented:

   The taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to receive will be recovered, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the persons concerned. However, the confining of a recovery regime by rigid rules, particularly in this area of the law, is likely to be productive of unfair or harsh outcomes in some of the great variety of fact situations that can arise. There are provisions in the Act which recognise that reality. They relate to the writing off and the waiver of debts otherwise due to the Commonwealth.

3. The Administration Act allows for debts to the Commonwealth to be written off or waived in certain circumstances.

   Waiver of debt due to sole administrative error

4. Section 97 of the Administration Act states:

   Waiver of debt arising from error

   (1)The Secretary must waive the right to recover the proportion (the administrative error proportion) of a debt that is attributable solely to an administrative error made by the Commonwealth if subsection (2) or (3) applies to that proportion of the debt.

   (2)The Secretary must waive the administrative error proportion of a debt if:

   (a) the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt; and

   (b)     the person would suffer severe financial hardship if it were not waived.

   (3)     The Secretary must waive the administrative error proportion of a debt if:

   (a)the payment or payments were made in respect of the debtor's eligibility for family assistance for a period or event (the eligibility period or event) that occurs in an income year; and

   (b)the debt is raised after the end of:

   (i)     the debtor's next income year after the one in which the eligibility period or event occurs; or

   (ii)     the period of 13 weeks starting on the day on which the payment that gave rise to the debt was made;

   whichever ends last; and

   (c)the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt.

   (4)For the purposes of this section, the administrative error proportion of the debt may be 100% of the debt.

   (Original emphasis.)

5. The Tribunal discussed the meaning of the word “solely” in the case of Re Gerhardt and Secretary, Department of Employment, Education and Training [1996] AATA 173, and stated at [40]:

   There is nothing in sub-section 289(1) which indicates that any meaning should be given to "solely" other than its ordinary meaning. Applying those ordinary meanings to the sub-section mean that the Secretary must waive the right to recover the proportion of the debt that is attributable only to the Commonwealth's administrative error. The Secretary's duty to waive does not extend to those debts which are attributable to errors or other factors which are independent of the Commonwealth's administrative error. It makes no difference that those other errors or factors are minor. If those other errors or factors follow as a result of the Commonwealth's administrative error (i.e. they are incidental to the Commonwealth's error), then it may be that the debt is attributable solely to the Commonwealth's administrative error. Whether it is or is not attributable in that situation to the Commonwealth's administrative error will be a question of fact.

6. Sole administrative error was considered by the Federal Court of Australia in Secretary, Department of Family & Community Services v Sekhon (2003) 73 ALD 41 at [41] which stated:

   However, it seems to me, the Tribunal failed to consider the significance of the inclusion, in s 1237A(1), of the word “solely”. For the subsection to have effect, the “proportion” of the debt – in this case, it is common ground, that would be the whole of it – must be “attributable solely” to administrative error. It is not enough that, in the absence of administrative error, the debt would not have arisen. Administrative error must be the sole cause, not merely one of multiple causes.

7. The Applicant’s submissions at the AAT1 hearing “went specifically to waiver of the debt on the basis of sole administrative error” (T2/7). The Applicant’s submissions and evidence adduced before the Tribunal were focussed similarly and are consistent with the evidence provided to the AAT1 (T2/9–10) which the Tribunal takes into account.

8. The Applicant’s contention, in summary, is that the debt was due to Centrelink’s sole administrative error because she contacted Centrelink on multiple occasions during the Debt Period to check her entitlement and to check whether her husband’s income was in the system, but Centrelink failed to properly record or act on that information. The Applicant, during her evidence, told the Tribunal that: “I [the Applicant] gave them [Centrelink] all the information they needed, it was their error” (Transcript/6).

9. The Applicant told the Tribunal that she had spoken to a lawyer who advised that all she had to do was to prove that she had provided all the relevant income documentation and the debt would be waived (Transcript/19). The Applicant further said that she could not afford the lawyer to represent her in this matter (Transcript/20).

10. The Applicant filed her phone records for the period July 2019 to November 2019 (ST3/108–110). However, this period is after the Debt Period and therefore these phone records cannot support the Applicant’s contention that she contacted Centrelink during the Debt Period.

11. The Applicant’s mother, Mrs B, provided an undated open letter in which she advised that although she could not recall the date, probably in March or April 2019, she had accompanied the Applicant to Centrelink because “she had had difficulty using the on line option” and had heard a service officer tell the Applicant that her husband’s income was in the system. Mrs B also stated that on more than one occasion she had witnessed the Applicant making telephone calls seeking assurances regarding her eligibility for Austudy (ST4/111). Under cross examination, Mrs B was unable to provide the dates of these calls other than one being in late July 2019 (Transcript/12).

12. Ms J (referred in para [6] above) provided an undated open letter in which she stated that in April 2019 she was with the Applicant when the Applicant received an email saying that she was eligible for Austudy. Ms J states that the Applicant rang Centrelink to check that the details of her pay and her husband’s pay were recorded, and that she “clearly heard her talking to the person at Centrelink and they said they could see both pays in the system” (ST5/112).

13. The Applicant’s husband did not provide a witness statement, but his oral evidence included the following:

    (a)he thought that he earned too much for his wife to be eligible for Austudy, but despite a number of attempts he and the Applicant had been unable to find the relevant income threshold (Transcript/16);

    (b)he remembered the Applicant calling him to ascertain his income at the time she was applying for Austudy around March 2019, and that when he came home from work she had shown him the difficulty she had experienced completing the application online (Transcript/13–14); and

    (c)he witnessed phone calls between the Applicant and Centrelink during 2019, but not in the Debt Period because “every time she spoke to anyone, [Applicant’s husband] was at work” (Transcript/15).

14. The Tribunal has regard to the Customer Record Access Monitor (CRAM) Report (ST2/8–107) with respect to the Applicant. The CRAM report provides a detailed breakdown of every time a customer’s record is accessed by a staff member or externally by the customer during the Debt Period.

15. Centrelink, with the help of the CRAM report, answered questions raised by the AAT1 on 13 March 2020, as follows (ST2/7):

    Q1.Applicant states that due to a systems error she was unable to complete details of her partner’s income as part of her austudy application – is there any record of this? 

    A.I have carefully checked the agency’s sites that report issues such as this and can find no report of a system issue that would have prevented the customer from supplying her partner’s details. I do note in her Austudy claim she has answered all details about her partner’s assets and other income and has provided her employment income but not her partner’s income.

    Q2.Applicant says she provided and confirmed husband’s earnings with Dept in contact made on 7 March 2019 and also 8 March 2019 – is there any record of this? 

    A.Please see attached CRAM for contacts on 07/03/2019 and 08/03/2019.  Contact on 7/03/2019 is FAO related – made contact with the agency and also went online via web self-service. Contacts on this day were in regards to Family Tax Benefit but I can find no evidence that they were income related for either FAO or ISP reasons.

    Contact on 08/03/2019 is online via web self-service. There were no updates made to customer’s partner’s income on these dates. I can find no evidence that partner’s income was provided on this day for FAO or ISP purposes.

16. Social security and family assistance legislation both contain requirements to advise the Department of changes of circumstances and provisions which allow the Department to give a person a notice requiring them to inform the Department if a specified event or change in circumstances occurs or is likely to occur. The AAT1 explained in the decision that it is possible the Applicant “has assumed or confused that information the Department held for purposes of her family assistance was being applied to her austudy payments” (T2/12). Should this be the case, the Applicant’s reporting obligations would not have been satisfied and the sole administrative error discretion would not be available.

17. Whilst the Applicant was intransigent, both during this hearing and the earlier AAT1 hearing (see T2/12 at [31]) that she had repeatedly advised Centrelink of the specific income information relevant to her Austudy. However, this is not evident in the records before the Tribunal. Therefore, in absence of the evidence to dissuade it from doing so, the Tribunal gives significant weight to the responses provided to the clarifying questions posed by the AAT1 (at [43] above).

18. In determining the facts of this matter, the Tribunal is unable to assign any significant weight to the evidence of Ms J, Mrs B and Mr P. Mr P was not present on the occasions when the Applicant claims to have provided the income information related to her Austudy and confirmed that he did not witness any relevant telephone conversations during the Debt Period. Ms J’s open letter refers to being present in April 2019 when the Applicant received an email advice of her Austudy approval (well after the claim was granted on 8 March 2019 with payment starting from 7 March 2019 (T6/157)) and then the Applicant calling Centrelink to confirm. Mrs B refers to attending a Centrelink service centre in March or April 2019 “about a matter of my own intention” (Transcript/11), and was accompanied on that visit by the Applicant who was obliged to go to Centrelink due to a system error. This evidence is imprecise and there is no record of a system failure which would have prevented the Applicant from completing the details of her partner’s income when she initially applied for Austudy or at any later date during the Debt Period.

19. There is no evidence before the Tribunal to indicate that Centrelink records, relevant to the Applicant and contained in the material before the Tribunal, were altered, false or incomplete. Further, there is insufficient evidence to corroborate that the Applicant had provided required income details at the time of her application for Austudy in March 2019 or subsequently reported them during the Debt Period. Having regard to all the material before it, the Tribunal finds that the Applicant’s FTB debt cannot be attributed solely to administrative error and therefore its recovery cannot be waived under s 97 of the Administration Act.

20. In concluding this consideration of whether the FTB arose from sole administrative error, the Tribunal notes the Respondent’s contention “that where a person fails to comply with a notice given under section 68 of the Administration Act, there can be no sole administrative error for section 1237A(1) of the Act”, which is supported by the Tribunal’s observations in GGGD and Secretary, Department of Social Services [2020] AATA 802 (see Exhibit R1, para [45]). In the current application, the Respondent submits: “There is insufficient evidence to corroborate that the Applicant had reported her income as required and, at best, she may have reported it in relation to her families assistance payment (or estimate) which does not satisfy the reporting requirements and therefore cannot amount to sole administrative error” (Exhibit R1, para [46]). Having regard to the evidence before it, the Tribunal agrees with the Respondent’s submission.

    Special Circumstances

21. Section 101 of the Administration Act provides the discretion to the Secretary to waive all or part of a debt where it was not caused by an applicant knowingly making a false statement or failing to comply with the provisions of the family assistance law, and if there are “special circumstances (other than financial hardship alone) that make it desirable to waive”. In addition, pursuant to s 101(c) of the Administration Act, the Tribunal needs to be satisfied that it is more appropriate to waive than to write off all or part of the debt.

22. The Respondent accepts that the Applicant did not knowingly make a false statement or false representation (Exhibit R1, para [56]), and having regard to the evidence, the Tribunal agrees.

23. The term “special circumstances” is not defined in the relevant legislation. However, the term has been considered extensively in case law and the following relevant cases are often cited:

    (a)Beadle and Director-General of Social Security (1984) 6 ALD 1 where the Tribunal stated:

    An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.

    (b)Groth v Secretary Department of Social Security (1995) 40 ALD 541 where the Federal Court stated:

    The phrase "special circumstances", it has been said, although imprecise is sufficiently understood not to require judicial gloss...it is sufficient to observe that it would require something to distinguish Mr Groth's case from others, to take it out of the usual or ordinary case. That was, I consider, the only enquiry to be undertaken in this case. It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary. The enquiry I have referred to would involve considering what would be the effect, if the provision in question or the principle of liability it creates, is applied…

    (c)Angelakos v Secretary Department of Employment and Workplace Relations (2007) 100 ALD 9 where the Federal Court stated at [33]:

    ...There is less risk of overstatement if the words “unusual” or “uncommon” are emphasised. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case. It may not be easy to postulate the ordinary or usual case other than in quite general terms and, in doing so, close attention must be given to the particular statutory context.

    (d)Davy and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 693 at [80]:

    ...“special circumstances” are not merely directed to the person’s own circumstances. Rather, they are directed to those that are “special circumstances ... that make it desirable to waive”. That necessarily requires a consideration of the person’s individual circumstances but also a consideration of the general administration of the social security system. Waiver of the debt would mean that Mr Davy would have had the benefit of part of his DSP in circumstances in which he was not entitled to it. Certainly, he did not know that his father was giving him his own money but the fact that he was deceived by his father does not mean that it is desirable to waive the debt. He has had the benefit of the money and there is no injustice in requiring him to repay the money of which he has had the benefit but not the entitlement. His not knowing that his father had continued to receive the money does not take him outside the expectation that all social security recipients should repay money when they receive money but are not entitled to it. The system of administration of the SS Act does not visit any injustice for many if not all social security recipients but it did not lead to any injustice or unfairness on Mr Davy that is not visited, or potentially visited, upon all other recipients of social security payments under the Act. Therefore, I am not satisfied that there are special circumstances that make it desirable to waive the debt under s 1237AAD of the Act.

24. The Respondent submits that the Applicant has not filed any evidence in respect of her circumstances but notes that in Exhibit A the Applicant “alludes to financial hardship and difficulty finding employment” (Exhibit R1, para [58]). The Tribunal has regard to the Applicant’s evidence before the AAT1 including statements that “Her husband is employed full time and she received family assistance payments” and “They are finding their finances considerably stretched, their main debt being the home mortgage” (T2/13).

25. The Applicant, during the hearing, told the Tribunal that:

    (a)she was working casually now while also studying nursing full-time at university, and her shifts and placements in the last year caused her to be unable to work for a total period of three months (Transcript/20);

    (b)this matter extending over two years had caused stress for her and her family, including reliance on one income rather than two (Transcript/19); and

    (c)she and her husband had five children and were caring for another whose parents were unable to look after the child (Transcript/19).

26. The Tribunal accepts the Applicant’s evidence describing her circumstances. Whilst sympathetic to those circumstances, the Tribunal is unable to conclude that they could be considered unusual or uncommon so as to be distinguishable from the ordinary or usual case as required by the legislation and the guidance contained in the cases cited above. It follows that the special circumstances waiver provision cannot be enlivened in the Applicant’s case.

    Should the FTB debt be written off?

27. Section 95 of the Administration Act provides for the possibility of writing off a debt for a period and relevantly states, in part, as follows:

    (1)The Secretary 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.

    Secretary may write off debt if debt irrecoverable or debt will not be repaid etc.

    (2) The Secretary may decide to write off a debt under subsection (1) 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.

1. In the present matter, the Applicant’s location is known, her husband is in full-time employment, the Applicant has some casual employment and receives FTB payments. The Applicant’s mother recently repaid the Applicant’s FTB debt. Had she not done so it was open to the Applicant to make repayments at a rate negotiated with the Agency. The debt is recoverable at law, and the Respondent’s submissions indicate that it is cost-effective for the Commonwealth to take recovery action

2. The Tribunal is satisfied that none of the circumstances prescribed in s 95(2) of the Administration Act arise to allow write off of the Applicant’s debt. Therefore, the Tribunal finds that the debt cannot be written off under s 95 of the Administration Act.

   CONCLUSION

3. It is not in dispute and the Tribunal is satisfied that the Applicant has been overpaid FTB.  The Tribunal finds that the overpayments were received in good faith, the debt was not due to sole administrative error and that special circumstances have not been established so as to make it desirable that the recovery of the debt be waived. Further, the Tribunal finds that the discretion to write off the debt for a period is not enlivened.

4. The Applicant, during the hearing, told the Tribunal that someone at Centrelink had accused her of lying in relation to the matter before the Tribunal (Transcript/10). The Tribunal is unable to comment on that claim. However, the Tribunal is of the view that the Applicant’s application to the Tribunal, her submissions, and her evidence were genuine and sincere. Nothing in the Tribunal’s decision and the reasons for it give rise to any negative inferences regarding the Applicant’s integrity and character.

   DECISION

5. It follows from all of the above that the Tribunal affirms the Reviewable Decision, being the decision of the AAT1 made on 25 March 2020, which affirmed the decision of the ARO made on 2 December 2019 raising a FTB debt of $3,776.96 for the Debt Period.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, AM, LVO (Retd), Member

.......................[Sgd].................................................

Associate

Dated: 3 September 2021

Date of hearing:	29 July 2021
Applicant:	Self-represented
Counsel for the Respondent:	Ms Alexandra Cornfield, Sparke Helmore Lawyers