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

Patterson and Secretary, Department of Social Services (Social services second review) [2017] AATA 1566 (28 September 2017)
Division:GENERAL DIVISION
2016/6321 and 2016/6325File Number:
Re:Ayumi Patterson
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member J Sosso
Date:28 September 2017
Place:Brisbane

The decisions under review are set aside. The Applicant is not liable to repay any of the PP debt raised by the Respondent and her FTB debt is waived due to special circumstances.
.....................[Sgd]...................................................
Senior Member J Sosso
CATCHWORDS
SOCIAL SECURITY – Family Tax Benefit – Parenting Payment – overpayments – whether Applicant obtained benefit of Parenting Payment – meaning of obtained benefit –whether Applicant paid Family Tax Benefit – meaning of been paid - debt write off – whether sole administrative error - special circumstances – matters of relevance in determining special circumstances
LEGISLATION
Social Security Act 1991
A New Tax System (Family Assistance) Act 1999
A New Tax System (Family Assistance) (Administration) Act 1999

CASES
Segran and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 799
Sekhon v Secretary, Department of Family and Community Services (2003) 132 FCR 126
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Secretary, Department of Social Security v Hales (1998) 82 FCR 154
Haggerty v Department of Education, Training and Youth Affairs (2000) 31 AAR 529 Perkich and Secretary, Department of Social Security [2007] AATA 300; 49 ALD 137
Ling and Department of Family and Community Services [1999] AATA 797

REASONS FOR DECISION
Senior Member J Sosso
28 September 2017
INTRODUCTION

Mrs Ayumi Patterson (the Applicant) has applied to the Administrative Appeals Tribunal for a review of two decisions of the Social Services and Support Division of this Tribunal (AAT1) of 19 August 2016 that the Applicant was overpaid Family Tax Benefit (FTB) and Parenting Payments (PP) in the amounts of $4061.46 and $3791.25 respectively, that the overpayments were debts owed to the Commonwealth and are to be recovered.
The background to these applications is set out in the decision of the Tribunal in matter 2016/5097. In summary the Applicant and her husband, Mr Richard Patterson, separated on 16 June 2015. Mr and Mrs Patterson have two children: L and A. The Applicant received the PP as she was considered the principal carer of her children. Further, she also received fortnightly FTB payments in respect of her children.
The Applicant left the family home and commenced living with their lessor in his home, only a short distance away and on the same rural property. The children remained with Mr Patterson and he then became their principal carer.
In a separate decision the Tribunal has affirmed a decision that the care of the Applicant’s two children should be recorded as being 100% in the care of Mr Patterson from 16 June 2015.
It is not contested that Centrelink was formally notified on 11 August 2015 that the Applicant and her husband had separated, but that they lived separately on the same rural property – Exhibit 1 T12 p. 143.
The Applicant completed a “Relationship Details – separated under one roof” form and returned it to Centrelink on 12 August 2015. In that form, inter alia, Centrelink was advised that the Applicant and her husband had separated from 16 June 2015 – Exhibit 1 T5 p. 96.
The Applicant also advised Centrelink that she lived in a different house (p. 96), she was living with her boyfriend (pp. 98-99) and that her husband was mainly responsible for the care of their children (p.102).
On 21 September 2015 Mr Patterson returned the same form to Centrelink. He also advised Centrelink that the Applicant “no longer lives in my house and I am the primary carer of our two children” – Exhibit 3.
In response to Question 45 “Do you have a joint account, or the use of any accounts (including store cards and/or credit cards) with the other person?”, Mr Patterson ticked the “No” box. Similarly, in response to Question 46 “Do you have access to each other’s accounts?”, Mr Patterson ticked the “No” box – Exhibit 3.
The Applicant provided the same responses in her form which was supplied to Centrelink on 12 August 2015- Exhibit 1 T5 p. 100.
Following a claim by Mr Patterson for both the PP and FTB, payments to the Applicant were suspended from 12 October 2015 – Exhibit 1 T 12 p. 145. The Applicant confirmed in a telephone conversation with a Centrelink officer on 16 October 2015, that she had separated from her husband on 16 June 2015 and that Mr Patterson had custody, and took the majority of care of, the two children – Exhibit 1 T12 p. 148.
On 16 November 2015 Centrelink recorded the Applicant as having 0% care of her children, effective from 16 June 2015.
On 11 December 2015 Centrelink raised a FTB debt of $4061.46 against the Applicant for the period 1 July to 1 October 2015 and a PP debt of $3791.25 for the period 16 June to 1 October 2015 – Exhibit 1 T9 pp. 125-126.
It is not contested that between 16 June and 1 October 2015 both the FTB and PP payments were deposited into a joint ANZ Bank Account in the name of “R and A Patterson” – Exhibit 1 T11 p. 129.
It is also not contested that Mr Patterson removed the Applicant’s access to the joint ANZ Bank Account shortly after the separation, and that although the FTB and PP were paid into that account she was unable to access the account and did not benefit from the depositing of those sums – Exhibit 1 T2 p.15 para 12.
Both in these, and earlier, proceedings, the Applicant has contended that she informed Centrelink of her changed circumstances but, unknown to her, action was not initiated. Further, as she was blocked from accessing the joint bank account, she was unaware that Centrelink was continuing to deposit FTB and PP payments, and, in any event, she obtained no benefit from that state of affairs. The Applicant contends, it would be unfair for her to be penalised for a state of affairs she was unaware of and obtained no benefit from.
A hearing was convened in Brisbane on 15 August 2017. The Applicant participated via teleconference and gave evidence. Mr Patterson was also contacted by the Tribunal and agreed to give evidence. The Secretary, Department of Social Services (the Respondent) was represented by Ms Julia Driver, Government Lawyer, FOI and Litigation Branch, Department of Human Services.
ISSUES
Ms Driver contended (Exhibit 2 para 2), and the Tribunal agrees, that the issues for consideration are whether:
(a)the Applicant was overpaid FTB in the amount of $4061.46 for the period 1 July 2015 to 1 October 2015;
(b)the Applicant was overpaid PP in the amount of $3791.25 for the period 16 June 2015 to 1 October 2015;
(c)the overpayments are debts owed to the Commonwealth;
(d)the debts are to be recovered.
CONSIDERATION
Was the Applicant overpaid FTB and PP?
The Tribunal has already determined in 2016/5097 that the Applicant’s children were in Mr Patterson’s 100% care from 16 June 2015, and that the Applicant was not entitled to receive FTB payments from that time.
Section 500 of the Social Security Act 1991 (the Act) provides that a person is qualified to receive the PP if the person is the principal carer of at least one child. Relevantly s 5(15) provides that a person is the principal carer of a child if (a) the child is a dependent child of the person and (b) the child has not turned 16. Further, only one person at a time can be the principal carer of a child – s 5(18). If two or more adults could be the principal carer, s 5(19) requires the Respondent to determine which of those adults is the principal carer.
In this matter having already determined that Mr Patterson had, for FTB purposes, 100% care of the children, it follows that he is the principal carer for the purposes of PP, and that the Applicant was not entitled to PP from the date of her separation from her husband.
Are the overpayments debts due to the Commonwealth?
Does the Applicant have a Parenting Payment debt?
Subsection 1223(1) of the Act provides that if a social security payment is made and a person “obtains the benefit of the payment” and was not entitled to “obtain that benefit” the amount of the payment is a debt due to the Commonwealth.
This subsection was considered by the Tribunal in Segran and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 799 (Segran).
Ms Segran was paid PP without her knowledge. PP was paid in response to a claim made in her name, but without her knowledge, by her husband. Her husband, apparently, forged her signature or arranged for a third person to forge her signature. PP was paid into a Westpac Bank account that was held in the name of Ms Segran and her husband, however, he refused her access to the account without his permission. Ms Segran was never allowed to access money from the account and was required to account to her husband for any money she accessed.
The Tribunal made the following findings ([11] – [15]):
“11. There is no doubt that the payments were made into the bank account that the applicant held jointly with her then husband. However, that is not to say that she obtained the benefit of the payments that were made into the account. She was not aware that the claim form had been lodged, and, of course, it follows that she did not know that this was the account nominated on the claim form as the account into which payments would be made. Furthermore, given the control that the husband exercised over the account, she could not know that the amounts were being paid in. It is by no means clear that the applicant obtained the payments, but even if she did, that is not enough – she must have obtained the benefit of the payments before the amounts paid can become a debt due by her to the Commonwealth.
12. The use of the expression ‘a person who obtains the benefit of the payment’ rather than simply ‘a person who obtains the payment’ suggests a requirement that the person is in some way advantaged – better off, or in an improved state – by the fact of the payment. Ordinarily a person into whose account a payment is made will obtain the benefit of the payment, by being immediately entitled to use the money that it represents for his or her own purposes. But it will not always be so.
13. In this case, the evidence shows that the person who obtained the benefit of the payment was the applicant’s then husband. Apart from the purely financial aspect of the payment, he also obtained an additional level of authority and control over the applicant. It was he who controlled the account; it was he who decided how much would be withdrawn from the account, and when. He required his wife to account to him for each individual sum of money he chose to make available to her. If she was ever unable to do so, he was physically violent towards her.
14. The applicant, on the other hand, did not obtain the benefit of the payments made by Centrelink. She was not ‘better off’ as a result of the payments. Although she was theoretically entitled to fifty cents in every dollar deposited to the joint bank account, the true situation was that money was only ever sparingly doled out to her from that account. It is likely that the husband made no more money available to her than he would have made available if the parenting payments had not been received.
15. I find that the applicant did not obtain the benefit of the parenting payments. As a result, even assuming that parenting payment was overpaid, the applicant does not have a parenting payment debt to the Commonwealth.”
It is not contested that the Applicant did not access any of the PP deposited into the joint account. It is also not contested that Mr Patterson, in effect, blocked the Applicant’s access to the joint account shortly after the separation. In short, it is not disputed that the Applicant has received no PP money after she left the family home in June 2015.
A benefit is usually categorised as an advantage, profit or gain. To obtain a benefit a person’s state of affairs is advanced, whether monetarily or in some other tangible way.
As the Tribunal highlighted in Segran, in order that a person can be categorised as having obtained the benefit of a PP, that person must be in some way advantaged. This does not mean, for example, that it must be shown that a person has actually accessed money, or spent it. Rather, it simply means that that a recipient’s overall situation is improved, and concepts of access or use, are secondary to the overall concept of benefit. However, it also means that a person obtaining a benefit, can, if they choose access it and spend it.
A person does not obtain a benefit if they are denied access to it, cannot spend it, and have no knowledge of its existence. If it were otherwise, then an illusion would be masked as reality.
Although not canvassed in Segran, a further question needs to be addressed. Even if a person did not have the benefit of the payment, did they contribute to this state of affairs and could they have rectified this state of affairs?
The evidence before the Tribunal that suggests the Applicant neither agreed to, nor acquiesced, in her husband’s actions in denying her access to the joint bank account. The Applicant is of Japanese descent and her English language though adequate is not of the standard of a native speaker. During the hearing she required the services of a Japanese interpreter, and frequently relied on the interpreter to explain what was being said. The Applicant left the family home in difficult circumstances and left the running of the family home to her husband. The Tribunal formed the opinion that the Applicant relied on her husband to manage the family paperwork and was somewhat overwhelmed by the circumstances that flowed from her marriage breakdown. In short, she was in a comparative situation of disadvantage. She certainly was not in a position to take proactive steps to manage bank accounts and social security payments.
The Respondent contends (Exhibit para 28), that if a person is paid more than they are entitled to be paid, the excess payment is a debt to the Commonwealth.
That is generally correct, but there is the additional requirement that the recipient must obtain the benefit of the payment. It is here where the Respondent’s case fails, for as outlined above, the evidence presents demonstrates that the Applicant did not obtain the benefit of the payment.
In the circumstances, the Applicant does not have a PP debt to the Commonwealth.
Does the Applicant have a family tax benefit debt?
The FTB is paid pursuant to A New Tax System (Family Assistance) Act 1999 (the FA Act). Section 3 of the FA Act provides, inter alia, that the FTB is a form of “family assistance”.
Subsection 71(1) of A New Tax System (Family Assistance) (Administration) Act 1999 (the FA (Administration) Act) provides that where an amount has been paid to a person by way of FTB and the person is not entitled to the assistance, the amount paid is a debt due to the Commonwealth.
The issue is whether the evidence discloses that the FTB was paid to the Applicant.
This is a different test to that mandated by s 1223 of the Act. There is no requirement that the Applicant obtained the benefit of the payment, simply that the payment was made.
The evidence before the Tribunal is that the payments were deposited into a joint bank account. The evidence also discloses that Mr Patterson ensued that his wife could not access the account. In these circumstances can it be said that the FTB was “paid” to the Applicant?
Segran stands for the proposition that in these circumstances these there has not been a payment – paras 27 – 31. However, I prefer to distinguish Segran, as the Tribunal there was presented with a very unusual and unfair situation.
The preferable approach to applying s 71 is not to focus on the theoretical legal rights of the recipient, but the actuality of payment by the Commonwealth. In short, the focus of s 71 is whether payments have been made by the Commonwealth, and not the legal situation of the recipient. The inquiry required when applying s 71 is simple and straightforward: did the Commonwealth make the payment, and was that payment credited to the nominated bank account? If the payment was made and credited to the nominated account, then the requirements of s 71 have been met.
Here, the FTB payments were made and were deposited in the nominated bank account, accordingly the Applicant has a FTB debt of $4061.46.
Is the debt to be recovered?
Debt write-off
The Respondent is empowered to write off a FTB debt for a stated period or otherwise if:
(a)the debt is irrecoverable at law;
(b)the debtor has no capacity to repay the debt;
(c)the debtor’s whereabouts are unknown; or
(d)it Is not cost-effective for the Commonwealth to take action to recover the debt – FA (Administration) Act s 95(1) and (2).
This provision mirrors s 1236 of the Act, and there is considerable jurisprudence on the correct approach to applying these provisions.
In this matter the Applicant’s whereabouts are known, the debt is recoverable at law, it is cost-effective for the Commonwealth to take action to recover the debt and the Applicant is earning an income and does have the capacity to repay the debt.
In these circumstances, there is no scope for the writing off the debt for a stated period pursuant to s 95.
Sole administrative error
Section 97 of the FA (Administration) Act requires the Respondent to waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth. Waiver, however, is dependent on the debtor receiving the payments in good faith and suffering severe financial hardship if the debt is not waived – s 97(2).
In Sekhon v Secretary, Department of Family and Community Services (2003) 132 FCR 126 Heerey J, on behalf of the Full Federal Court, said ([35]/135):
“The ordinary or usual interpretation of the phrase ‘attributable solely to’ is that it refers to the single or sole cause of the relevant act or event. The word ‘attributable’ means ‘capable of being attributed’. It involves an objective assessment of causation. The words ‘a debt attributable solely to an administrative error’ can be paraphrased as meaning that the only cause that objectively can be ascribed to the relevant debt is an administrative error.”
The evidence presented does not lead to the conclusion that debt arose solely because of administrative error by the Commonwealth.
In reaching this conclusion, the Tribunal has considered the following facts:
(a)Centrelink did not receive written confirmation that the Applicant and Mr Patterson had separated until 12 August 2015, or more than two months after the event;
(b)when the Applicant formally notified Centrelink she continued to assert that although her husband was “mainly” caring for the children she was also contributing to their care – Exhibit 1 T5 p.102;
(c)Mr Patterson did not provide written information to Centrelink until 21 September 2015, or more than three months after the separation – Exhibit 3;
(d)Mr Patterson claimed he had “100% care of the children” – Exhibit 3 p.11;
(e)the conflicting and scant nature of the information provided was insufficient for Centrelink to immediately determine the correct percentage of shared care for the purposes of determining FTB eligibility – s 22 FA Act;
(f)further, the Respondent had to determine whether the change in care as first notified by the Applicant on 12 August 2015 was part of a continuing pattern of care so that an informed decision could be made as to which of the parents was the principal carer. The brief and conflicting information provided in the August – September 2015 period did not provide a sound factual base for the Respondent to make an immediate informed decision.

Clearly the evidence suggests that Centrelink moved at a leisurely pace and took too long to suspend and then stop FTB payments to the Applicant. However, to impose on Centrelink a standard of behaviour which is ideal would be unfair.
It could not be said that there is sole administrative error having regard to the factual matrix disclosed by the evidence.
Moreover, even if the Tribunal were to find that there was sole administrative error and that the payments were received in good faith, there is no evidence that the Applicant would be placed in severe financial hardship if the debt was not waived. Insofar as the Applicant is working causally, is living, in a relationship with her boyfriend and has no identified debts, it could not be realistically contended that enforcing the FTB debt would cause her severe financial hardship.
For all of the above reasons, the Tribunal finds that there is not a basis for waiving the FTB debt pursuant to s 97 of the FA (Administration) Act.
Special circumstances
Section 101 of the FA (Administration) Act provides that the Respondent may waive the right to recover all or part of a debt if the Respondent is satisfied that:
“(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i)making a false statement or 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.”
There is a considerable body of jurisprudence on what constitutes “special circumstances”, however for present purposes reference can be made to the following observation of Kiefel J (as she then was) in Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545:
“The phrase ‘special circumstances’, it has been said, although imprecise is sufficiently understood not to require judicial gloss: Beadle’s case (at ALR 229; ALD 674), and for present purposes 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.”
As French J (as he then was) observed in Secretary, Department of Social Security v Hales (1998) 82 FCR 154 at 162 (Hales), the concept of special circumstances is broad and a constellation of factors may fall within it. The ability to waive a social security debt on the basis of special circumstances is a feature of various Commonwealth statutes. The FA (Administration) Act is but one of these. Nonetheless, each of these provisions is alike in providing, as French J observed (at 162):
“a flexible response to the wide range of situations which could give rise to hardship or unfairness in the event of a rigid application of a requirement for recovery of debt.”
It will be noted that both Kiefel J and French J avert to concepts of unfairness, unjustness, hardship and unintended consequences. Although each of the many Federal Court decisions have in common an emphasis on not limiting the operation of special circumstances by the enunciation of rigid formulae, all are linked by a focus on whether the particular circumstances of each case disclose that the rigid application of the debt recovery provisions of the relevant statute would produce a result which an ordinary citizen would say is unfair, harsh or inappropriate.
Certainly, in the normal course, where there has been an overpayment of social security benefits the expectation of the Australian community would be that any excess payment is repaid. However, a rigid application of this principle in all cases would be productive of harsh and unintended results that would be unacceptable to most citizens. It is for this reason that there is the ability to waive or write-off debts. The tension in balancing the overarching policy of preventing unjust enrichment with the need to ensure fairness and equity in particular situations was helpfully explained by French J in Hales as follows (155):
“From time to time in the administration of social security benefits overpayments occur. Sometimes these are the result of innocent non-compliance with the requirements of the law which can be affected by the stress associated with the circumstances that led to the receipt of the benefits in the first place. 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 waiver of debts where special circumstances are found to exist. There is a tension in the construction of such provisions between the needs for certainty of application and flexibility of response to the situations that may arise from time to time.”
In considering whether special circumstances exist, the following matters relating to the Applicant’s personal situation and background are of relevance:
(a)the Applicant was born in Japan and first came to Australia on a working holiday in circa 2000;
(b)the Applicant testified, with the assistance of a Japanese interpreter, that she has reasonable conversational English language skills, but has difficulties understanding many aspects of the English language;
(c)the Applicant works part time in Byron Bay on a two day per week basis. She is paid $22 per hour and works eight hours per day. The Applicant’s maximum weekly earnings would be approximately $352 gross;
(d)the Applicant testified she owns no significant assets apart from a 2009 Subaru Liberty she valued at $600;
(e)after paying all of her bills and living expenses she is able to save $20 a week for “a rainy day”;
(f)while she currently living with her boyfriend she informed the Tribunal that she did not regard it as a de-facto relationship; and
(g)the trip she took to Japan with her children in 2015, together with associated costs, was paid by her Japanese parents.
During the course of the hearing, the Tribunal contacted Mr Patterson and offered him the opportunity to take an affirmation and inform the Tribunal about the contacts he and the Applicant had made with Centrelink following their separation. Mr Patterson agreed and provided the following information:
(a)he and the Applicant attended at the Brunswick Heads Centrelink office approximately three or four days after their separation;
(b)the travelling time from their home to the Brunswick Heads office is approximately 30 minutes;
(c)Mr Patterson testified that he informed Centrelink that he and the Applicant had just separated and asked what they had to do;
(d)no forms were filled out on this occasion, but Mr Patterson testified that the Centrelink officer took notes on a computer and the officer brought his name and the Applicant’s up on the screen;
(e)having visited the Brunswick Heads office and orally informed a Centrelink officer, both Mr Patterson and the Applicant were of the belief that Centrelink was officially notified and no further action was required;
(f)Mr Patterson testified that on no occasion after their separation did the Applicant ask for any money that was paid by Centrelink for the care of their children;
(g)the Applicant never discussed, following the separation, social security payments;
(h)both he and the Applicant were confused about their legal requirements to Centrelink and continued to operate on the belief that they had fulfilled their legal obligation to inform Centrelink.
The Applicant also gave evidence to the Tribunal about her state of mind. She testified:
(a)after her separation, she did not consider herself a customer of Centrelink;
(b)she deleted the Centrelink app from her mobile phone;
(c)she was in a state of emotional turmoil following her separation and did not pay full attention to Centrelink “business”.
It is also uncontested that the Applicant did not obtain any benefit from the FTB payments. She could not access her joint account, was unaware money was being deposited in the account and assumed that she no longer was a Centrelink “customer”.
The first issue to be determined is whether the Applicant is precluded from the operation of the special circumstances provision because she knowingly made a false statement or representation. In short is there a lack of good faith by the recipient of the FTB payments. This was helpfully explained by French J in Haggerty v Department of Education, Training and Youth Affairs (2000) 31 AAR 529 at 534:
“The criterion of receipt in good faith may be characterised as a positive one as counsel for the respondent submitted. That is not to say that a recipient of a mistaken payment must prove that he or she has considered the entitlement to the money and positively concluded that there is an entitlement. There is no question of an onus here to be met by the recipient who claims benefit of the mandatory waiver. Nor is there some twilight zone between good faith and want of good faith. A waiver can only, in my opinion, be declined where there has been a receipt, without good faith, of moneys mistakenly paid. This accords with the general approach taken by Finn J whose construction of the provision is related to the criteria for want of good faith.
Consistently with what his Honour said in the Prince case, want of good faith will arise where there is a positive belief that the payment has been made by mistake. It will also arise where there is a suspicion held by the recipient that he or she may not be entitled to the payment made or a doubt as to the entitlement coupled with some objective basis for such suspicion or doubt. The provision does not, however, authorise the imputation of want of good faith in any of the senses above described simply because there are in existence objective facts which would raise a belief or a doubt or a suspicion of non-entitlement in the mind of some imaginary recipient.”
Here, the evidence suggests that the Applicant proceeded on the mistaken belief that she was no longer a customer of Centrelink and was unaware that FTB payments were still being credited to her for months after June 2015. Further, there is no evidence that she deliberately chose not to inquire or had any suspicions about the true state of affairs. On the contrary, the evidence suggests that the Applicant was a somewhat confused person who found the situation following the marriage separation both confronting and confusing. Her limited English language skills, relative social isolation on a remote rural property and general reliance on information provided by her husband (which the evidence suggests was given in good faith) all contributed to her honest but mistaken belief about the FTB payments.
Having carefully considered all the material before the Tribunal, I consider that special circumstances exist. In reaching this conclusion the following matters are of relevance:
(a)Lack of benefit. The Applicant never obtained any benefit from the FTB overpayments. She claims, and the Tribunal accepts, that she was unaware that they were being deposited in her joint account, was denied access to that account and never spent a cent of the payments deposited by Centrelink. The fact a social security recipient receives no benefit from a social security overpayment is an appropriate factor to be weighed when considering whether special circumstances exist: Perkich and Secretary, Department of Social Security [2007] AATA 300; 49 ALD 137;
(b)Lack of knowledge. The Applicant was unaware that FTB payments were continuing to be paid into her joint account, partly due to the fact that her husband withdrew her access to the account and she deleted the Centrelink app from her mobile phone. Where the recipient of social security payments obtains no advantage because they are unaware of that they are continuing to receive benefits this is a relevant consideration: Ling and Department of Family and Community Services [1999] AATA 797;
(c)Good Faith. The evidence suggests that both the Applicant and Mr Patterson attended at the Brunswick Heads Centrelink office shortly after their separation and orally informed a Centrelink officer of their changed circumstances. The factual matrix before the Tribunal suggests that the Applicant and Mr Patterson acted throughout in an open and honest manner and at no stage attempted to mislead Centrelink;
(d)Administrative delay. The Respondent concedes (Exhibit 2 para 46) that Centrelink was slow in taking action which would have rectified the situation earlier. While the Tribunal apportions no blame to Centrelink, it is the case that if there was a quicker turnaround many of the problems that developed could have been resolved;
(e)Applicant’s lack of English language skills. A further feature of this matter has been the Applicant’s relative lack of English skills with commensurate problems and misunderstandings. It is fairly clear that the Applicant was in a position of disadvantage and out of her depth. She relied on the advice of her husband and others and then proceeded with the misplaced confidence that she had fulfilled all of her legal obligations;
(f)Financial circumstances. The Applicant’s financial circumstances are difficult. She earns a small amount of money and can only save $20 per week. She has no assets except for a car worth less than $1000. In short, the Applicant is financially disadvantaged and is struggling to make ends meet.
If the Tribunal were to apply the yardstick of what an ordinary member of the community would say if asked if the Respondent should seek to recoup social security payments from the Applicant in the circumstances outlined, the response most probably would be that such action is unfair, harsh and inappropriate. The overarching concepts of fairness, appropriateness and justness expounded by Kiefel and French JJ resonate when considering the evidence before the Tribunal.
DECISION
The decisions under review are set aside. The Applicant is not liable to repay any of the PP debt raised by the Respondent and her FTB debt is waived due to special circumstances.

I certify that the preceding 68 (sixty - eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Sosso

........................[Sgd]................................................
Associate
Dated: 28 September 2017

Date of hearing: 15 August 2017

Applicant:
In person

Solicitors for the Respondent: Department of Human Services

[2017] AATA 1566

28 September 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Date of hearing:	15 August 2017
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services