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

Piper and Secretary, Department of Social Services (Social services second review) [2020] AATA 2959 (17 August 2020)
Division:GENERAL DIVISION
File Number(s): 2020/0053
Re:Justin Piper
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:17 August 2020
Place:Sydney

The decision under review is affirmed.
........................[SGD]................................................
Chris Puplick AM, Senior Member
CATCHWORDS
SOCIAL SECURITY – debt – disability support pension – where Applicant granted stay during proceedings before Tribunal – where effect of stay order was to restore disability support payments during review process – where decision to cancel disability support pension affirmed – overpayment – whether the Applicant owed a debt to the Commonwealth – whether the debt amount was correctly calculated – whether there were any grounds to waive or write-off the debt – decision affirmed
LEGISLATION
Social Security Act 1991(Cth) ss 1223AB, 1236, 1237A, 1237AAD
Administrative Appeals Tribunal Act 1975 (Cth) s 41
CASES
Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25
Sekhon and Secretary, Department of Family and Community Services [2003] FCAFC 190
Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114
Dranichnikov v Centrelink [2003] FCAFC 133
Gartside and Secretary, Department of Social Services (Social services second review) [2017] AATA 45
In the Marriage of Philippe (1997) 4 Fam LR 153
Jess v Scott and Others (1986) 70 ALR 185
Re Beadle and Director General of Social Security (1984) 6 ALD 1
Re Gerhardt and Secretary, Department of Employment and Training [1997] FCA 815
Secretary, Department of Social Security v Hales (1998) 82 FCR 154
Skinner and Secretary, Department of Social Services (Social services second review) [2015] AATA 569
Ward and Secretary, Department of Family and Community Services [2000] AATA 212
REASONS FOR DECISION
Chris Puplick AM, Senior Member
17 August 2020
The immediate narrative

Mr Justin Piper (the Applicant) seeks review of a decision made by the Social Services and Child Support Division of this Tribunal (AAT1) to affirm a decision by the Secretary, Department of Social Services (the Respondent) to raise a debt against him for the overpayment of disability support pension (DSP).
On 20 November 2006 the Applicant was first granted DSP. The basis upon which he was granted DSP was that he was assessed as having a level of impairment which attracted a rating of 20 points under what was then the operative Schedule 1B to the Social Security Act 1991 (the Act).
The method of calculating and assessing levels of disability changed as of 1 January 2012, with the coming into force of the Tables for the Assessment of Work-Related Impairment for Disability Support Pension Determination 2011 (the Impairment Tables).
The Tribunal was provided with a copy of a letter from the Hon Stuart Robert MP, Minister for the National Disability Insurance Scheme and Minister for Government Services which is dated 25 March 2020 and addressed to the Hon Linda Burney MP, the federal Member for Barton who had made representations on the Applicant’s behalf. In that letter the Minister explained that: “Changes to the eligibility criteria for DSP introduced in 2012 mean that some people who previously received DSP may no longer be eligible.”
These changes led to a review of the Applicant’s continuing eligibility for DSP and on 25 January 2016 the Department determined that the Applicant’s eligibility had ceased and his DSP was cancelled.
This cancellation decision was reviewed and confirmed by a departmental authorised review officer (ARO) on 8 April 2016. In turn that decision was affirmed by the AAT1 on 20 August 2016.
On 15 September 2016 the Applicant applied to this Tribunal for a Stay Order[1] to be granted to prevent the cancellation decision of the AAT1 coming into effect. That stay order was granted by Senior Member Stefaniak on 10 October 2016 and had the effect of restoring the Applicant’s DSP payments back to the date of cancellation on 20 August 2016. At the same time the Applicant sought a review of the AAT1 decision.
[1] Under section 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
That review (AAT2 second-tier review) determined, on 2 August 2017, that the original cancellation decision was correct.
As a result, the Department determined that between 20 August 2016 and 16 August 2017 (the debt period) the Applicant had been paid DSP when he was not entitled to receive it. As a result, it calculated this overpayment in the debt period to be $25,109.83 which it then took steps to recover.
The Applicant sought to have this calculation reviewed by application dated 27 June 2019, but this calculation was affirmed by an ARO on 27 September 2019.
The Applicant then sought a further review by another panel in the AAT1 which, on 11 December 2019, affirmed the decision of the ARO.
From there, on 6 January 2020 the Applicant sought a review of the AAT1 decision in this Tribunal and his application was heard on 13 July 2020.
The hearing was conducted by telephone in accordance with the restrictions imposed on the Tribunal’s operations by the COVID-19 pandemic. Although less than entirely satisfactory as a method of conducting hearings, the Tribunal is satisfied that all parties were afforded procedural fairness in the proceedings.
The Applicant’s assessments and DSP determinations
The Applicant has had a somewhat chequered history with the Department in terms of his various applications for DSP and the assessments of his eligibility which have attended them.
In November 2006, under the previous impairment rating arrangements he was found eligible for and granted DSP. On those tables he rated a 20 point score.[2]
[2] Piper v Secretary, Department of Social Services [2017] AATA 1215 at [5].
When the matter was considered by the ARO on 8 April 2016 using the new Impairment Tables he was found to have a rating of nil (0) points.[3]
[3] Applicant’s Submissions at 71.
The AAT1 decision of 20 August 2016, relying on the same material as that before the ARO assigned the Applicant 10 points.[4]
[4] Section 37 Tribunal Documents (T Documents) at p 32.
The AAT2 decision of 2 August 2017 assigned the Applicant a total of 5 points.[5]
[5] Ibid at p 42.
The Applicant then made a series of further applications for DSP on 12 January 2018, 11 October 2018, 29 January 2019 and 1 May 2019, all of which were refused by the Department.
Over a period of time, the Applicant’s health deteriorated substantially and on 19 August 2019 a new AAT1 panel heard his appeal against the rejection of his DSP claim of 1 May 2019 and found that he had an impairment rating of 40 points plus a continuing inability to work and as such qualified for DSP[6] which has been paid to him on a continuing basis as from 1 May 2019.[7]
[6] Piper v Secretary, Department of Social Services, Social Services and Child Support Division, Administrative Appeals Tribunal Review no 2019/S137318; Applicant’s Submissions at p 103-114.
[7] Respondent’s Statement of Facts and Contentions at [11].
Questions before the Tribunal
There are two matters for determination by the Tribunal: namely, does the Applicant have a debt to the Commonwealth (and if so, in what amount); and are there any reasons why that debt should not be recovered?
Before consideration of these matters, it is necessary to say something of the Applicant’s personal situation.
The Applicant was born in March 1976 and has, for a number of years, suffered from both physical and mental ill health. In May 2009 the Applicant was the innocent victim of a serious assault[8] which left him with lasting problems with his face and throat. The Applicant’s health conditions appear to have deteriorated over time as is evident in the analysis provided in the AAT1 decision of 19 August 2019.[9]
[8] Applicant’s Submissions at [P59].
[9] T Documents at p 92-103.
In 2013 he met his wife online, she being a Malaysian citizen and resident there. In June 2015 the couple were married in Malaysia and they have two young children who reside there with their mother. The Applicant has made several visits to his family in Malaysia[10] and his wife has visited Australia at least twice. The Applicant states that he has seen his wife for only some 30 days in their five years of marriage and has spent less than 30 days with his children.[11]
[10] The Applicant travelled overseas for periods of six weeks once in 2013 and twice in 2014. In 2015 he was absent from Australia for at least four periods of 28 days and in 2016 was absent twice for periods of less than four weeks: T Documents at p 37.
[11] Applicant’s Submissions at p 1-2.
The Applicant has not always had a trouble-free relationship with the Department and there have been occasions when he has been required to conduct his dealings with the Department by telephone rather than in person. Nevertheless, the Applicant and the Department have been in regular contact throughout all relevant periods.[12]
[12] Ibid at p 115-120.
Is there a debt?
The answer is clearly, yes. The Applicant was paid DSP between the date when it was first cancelled (20 August 2016) and the date when that cancellation decision was finally affirmed as correct by the AAT2 (16 August 2017).
The reason for this was solely as a result of the Applicant’s successful application for, and granting of, a stay order on 10 October 2016. He would have been aware that if the stay order was granted and his DSP payments resumed, then, in the event that it was found later that the DSP cancellation was correct, he would be obliged to repay the sum in question. The creation of the debt was entirely a matter precipitated by his own actions.
The Tribunal can say this with some confidence relying upon details of a conversation between the Department and the Applicant. Departmental records show on 13 September 2016 as follows:
“Customer advised he will be going to aat2 – we discussed stay orders and continuation of DSP – I advised cust if he is granted stay order and payment of DSP – and if AAT2 appeal is not successful then an overpayment will be raised for DSP. Customer advised he does not care as he will be successful. I advised cust he can test his eligibility for another Centrelink payment. Cust advised he does not wish to do so and will be ringing aat2 today to talk about stay order.”[13]
[13] T Documents at p 152.
The position is made clear in section 1223AB of the Act which deals with debts arising consequent upon the Tribunal having made a stay order:
(a)a person applies for AAT second review of a decision; and
(b)the AAT makes an order under subsection 41(2) of the AAT Act; and
(c)as a result of the order, the amount that has in fact been paid to the person by way of social security payment is greater than the amount that was payable to the person;
the difference between the amount that was in fact paid to the person and the amount that was payable to the person is a debt due to the Commonwealth.
Is the debt calculation correct?
Again, the answer is yes. The Tribunal was provided by the Respondent a print-out of all payments made to the Applicant between 4 September 2015 and 31 July 2020. There was no time in this period that the Applicant was not in receipt of payments from the Department.
The Department has calculated the debt from 20 August 2016 to 16 August 2017 as being $25,109.83. The Tribunal, using the material provided by the Department added up all the payments made between the pay periods 19 August 2016 and 18 August 2017 to come to a total of $27,812.29. There are a number of payments on the schedule which do not appear as “regular” payments or appear as “part pay” and the Tribunal presumes that these have been accounted for differently in the debt calculation. Regardless of their exact nature the Tribunal is satisfied that the debt calculation by the Department is correct.
Should the debt be cancelled, waived or written-off?
The answer in this instance is no, for the reasons outlined below.
There are three provisions in the Act which allow for certain debts to the Commonwealth to be either waived or written off, and hence not collected.
Administrative error
Section 1237A of the Act states:
1Subject to subsection (1A), the Secretary 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.
Note: subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).
1A Subsection (1) only applies if:
(a)the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or
(b)if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;
whichever is the later.
Special Circumstances
Section 1237AAD of the Act states:
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a)the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c)it is more appropriate to waive than to write off the debt or part of the debt.
Write-offs
Section 1236 of the Act provides for the possibility of writing off or delaying recovery of a debt for a period:
(1A) The Secretary may decide to write off a debt under subsection (1) 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.
(1B) For the purposes of paragraph (1A)
(a)a debt is taken to be irrecoverable at law if, and only if:
(b)there is no proof of the debt capable of sustaining legal proceedings for its recovery;
(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)(d) the debtor has died leaving no estate or insufficient funds in the debtor's estate to repay the debt.
The matter of administrative error may be dealt with in short order. There is clear judicial authority that for debts to be waived as a result of “administrative error” it must be shown that (a) such error existed and (b) such error was the sole cause of the debt being created.[14]
[14] Re Gerhardt and Secretary, Department of Employment and Training [1997] FCA 815; Sekhon and Secretary, Department of Family and Community Services [2003] FCAFC 190; Ward and Secretary, Department of Family and Community Services [2000] AATA 212.
In this instance there is no evidence that there was any error on the part of the Department and, even if there had been, the actions of the Applicant in obtaining the stay order would have meant that any such error would not necessarily have been the sole cause of the debt’s creation.
As with so many key concepts in the Act, the term “special circumstances” is not given any precise definition. Without going into extensive detail, it can be said that the courts have identified a number of factors which go to establishing whether or not “special circumstances” exist. They must be:
·Something more than ordinary or usual;[15]
·Markedly different from the usual run of cases – not necessarily unique but having a particular quality of unusualness;[16]
·Somehow distinguishing from usual cases of an analogous nature;[17]
·Attuned to the individual circumstances of each case;[18]
·Not so rigidly applied as to risk harsh or unreasonable outcomes;[19]
·Involving “facts peculiar to the particular case which set it apart from other cases”;[20]
·Supportive of the overall integrity of the social security system and recognising the public interest in ensuring that public moneys are recovered where they can and should be.[21]
[15] Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25; Jess v Scott and Others (1986) 70 ALR 185.
[16] Re Beadle and Director General of Social Security (1984) 6 ALD 1 at [3].
[17] Dranichnikov v Centrelink [2003] FCAFC 133.
[18] Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114.
[19] Secretary, Department of Social Security v Hales (1998) 82 FCR 154.
[20] In the Marriage of Philippe (1997) 4 Fam LR 153 per Kay J.
[21] Skinner and Secretary, Department of Social Services (Social services second review) [2015] AATA 569; Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114; Secretary, Department of Social Security v Hales (1998) 82 FCR 154.
Many applicants pleading special circumstances will find themselves in circumstances of financial hardship. However, in Gartside[22] the Tribunal made it clear:
I do not understand the many Federal Court and Tribunal decisions on “special circumstances” to require the Tribunal to find that special circumstances exist simply because the Applicant is in straitened financial circumstances. My understanding of the law is that it is open for the Tribunal to find special circumstances in such a circumstance, but a Tribunal Member is not obliged to do so. In exercising the discretion vested in the Tribunal, a Member is required to consider all of the matters the evidence admitted produces and straitened financial circumstances is one factor, albeit a very important one, but not the sole one. As Sheppard J said in Director General of Social Services v Hales [1983] FCA 81; (1983) 47 ALR 281 at 321:
“The legislation provides for the payment of a variety of benefits to different classes of people who will usually have one thing in common; they will be impecunious and in straitened circumstances. Very often their stories will be quite tragic.”
[22] Gartside and Secretary, Department of Social Services (Social services second review) [2017] AATA 45 at [57].
The Tribunal does not believe that the Applicant has presented any evidence which establishes that his circumstances are “special” within any of the meanings canvassed above.
The Applicant decided to initiate the stay order which resulted in the consequences already outlined. He declined offers from the Department to test alternative welfare payments which might have been available to him. At all times he was in some form of communication with the Department and he was in regular receipt of payments. The fact that the presentation of new evidence to the Tribunal caused it to find him eligible for DSP at a later stage is commonplace in such proceedings.
At present he is in receipt of DSP at the single rate of $860.60 per fortnight and also receives rent assistance of $131.55 per fortnight.[23] There is no evidence before the Tribunal about the financial, accommodation or support position of the Applicant’s wife and children in Malaysia.
[23] Respondent’s Statement of Facts and Contentions, Attachment D.
The Applicant has been making repayments to the Commonwealth by way of monthly withholdings from his social security payments. To date he has repaid $1,872.61. Such withholding payments were originally taken from his newstart allowance in October 2017 at the rate of $82.14 per fortnight. As from 24 August 2018 the withholdings have been at the rate of $15.00 per fortnight (from the newstart allowance until September 2019 and from DSP since that date).[24]
[24] Repayment Summary provided by the Respondent from Centrelink Records extracted 16 July 2020.

In his evidence to the Tribunal the Applicant stated that he actually “had not noticed” the modest $15.00 withholdings and they have obviously not compromised his position or living conditions to any extent.
The Tribunal understands that this scheme and level of payment is proposed to be maintained by the Department, and although the Applicant described this as a “73 year repayment plan” which would take him until he was 117 years old to complete, that is not the point. The point is that a debt is accepted and the Commonwealth has accepted a scheme of repayment which takes account of the Applicant’s circumstances and his capacity to pay.
None of the conditions specified in section 1236 of the Act apply in order to justify a write-off of the debt under that part of the legislation.
Conclusions
It is clear that a debt to the Commonwealth has arisen as a result of the overpayment of DSP to the Applicant occasioned by his successful application for and granting of a stay order on implementation of a decision which was eventually reaffirmed.
It is clear that the debt has been properly calculated by the Department.
There are no grounds by way of administrative error, special circumstances or specified write-off provisions which would cause the repayment of the debt to be waived, cancelled or written-off.
DECISION
The decision under review is affirmed.

I certify that the preceding 51 (fifty -one) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

.................................[SGD].......................................
Associate
Dated: 17 August 2020

Date(s) of hearing: 13 July 2020

Applicant: In person

Solicitors for the Respondent: C Campbell, Services Australia

[2020] AATA 2959

17 August 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Remedies

Standing

Statutory Construction

Date(s) of hearing:	13 July 2020
Applicant:	In person
Solicitors for the Respondent:	C Campbell, Services Australia