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

Priest and Secretary, Department of Social Services (Social services second review) [2020] AATA 3048 (13 August 2020)
Division:GENERAL DIVISION
File Number(s): 2019/0753, 2019/0754
Re:Sara Priest
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member S Barton
Date:13 August 2020
Place:Perth

The Reviewable Decision, being the decision of the AAT1 dated 6 February 2019 is affirmed.
...................................[SGD]..................................
Member S Barton
CATCHWORDS
SOCIAL SECURITY – Carer Payment – social security – failure to disclose employment – Carer Payment overpayment – waiver of debt – administrative error – special circumstances – write off debt – FBT debt – legally recoverable debt – decision affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth) – ss 68(2), 142(1), 179(1)
A New Tax System (Family Assistance) Act 1999 (Cth)
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth) – s 25(1)
CASES
Beadle and Director-General of Social Security [1984] AATA 176
Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114
Groth and Secretary, Department of Social Services (1995) 40 ALD 541
Jazazievska v Secretary Department of Family & Community Services [2000] FCA 1484
RCA Corporation v Custom Cleared Sales Pty Ltd (1978) 19 ALR 123
Secretary, Department of Social Security v Hales [1998] FCA 219
Secretary, Department of Family and Community Services v Sekhon [2003] FCA 76
Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190
Wall and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 740
SECONDARY MATERIALS
Guides to Social Policy Law, Social Security Guide
REASONS FOR DECISION
Member S Barton
13 August 2020
BACKGROUND
The Application

The decision under review is a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 6 February 2019 to affirm the decision of a Department of Human Services’ (the Department) Authorised Review Officer (ARO) to raise and recover from Ms Priest (the Applicant) a Carer Payment debt totalling $24,728.78 for the period 17 November 2016 to 10 October 2018. AAT1 also affirmed that Applicant had no further Family Tax Benefit (FTB) debt for the period 1 July 2018 to 5 September 2018.
FACTS
On 15 October 2018, the Applicant was advised that the Department had determined she had been receiving the incorrect Carer Payment and had raised a debt of $24,728.78 for the period 17 November 2016 to 10 October 2018.
On the same day, the Applicant was advised that the Department had asked her to repay two separate FTB debts. The first debt was of $708.10 for the period 1 July 2016 to 30 June 2017 and the second debt was of $529.30 for the period 1 July 2018 to 5 September 2018.
The Applicant sought internal reviews of the above decisions by the Department and was advised on 26 October 2018 that the ARO found the decision to raise the Carer Payment debt of $24,728.78 correct. Separately, on the same day, the Applicant was advised that the decision to raise a FTB debt of $708.10 had been waived, but the decision to raise a FTB debt of $529.30 had be upheld.
On 7 November 2018, the Applicant sought a review by AAT1. On 6 February 2019, AAT1 affirmed the decision to raise the Carer Payment debt against the applicant, but found there was no further FTB debt.
On 13 February 2019, the Applicant applied for a review of ATT1’s decision in the General Division of the Administrative Appeal Tribunal (the Tribunal).
JURISDICTION
The application for review is made in accordance with s 179 of the Social Security (Administration) Act 1999 (Cth). Therefore, the Tribunal is satisfied that it has jurisdiction to undertake a review of the merits.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on Friday 8 May 2020. The Applicant appeared via teleconference and was self-represented.
The Applicant gave oral evidence.
The Respondent was represented by Mr A Burgess, who appeared via teleconference.
The Tribunal admitted the following documents into evidence at the hearing:
(a)Applicant’s statement, dated 3 June 2019 (Exhibit A1);
(b)Email from Jemma Dessauvagie, dated 24 April 2019 (Exhibit A2);
(c)Letter from Dr Bronwyn Charigg, dated 2 April 2019 (Exhibit A3);
(d)Letter from Isabella O’Donovan dated 24 May 2019 (Exhibit A4);
(e)Letter from Katrina Hunter, dated 23 May 2019 (Exhibit A5);
(f)Letter from Regina Ledo, dated 23 May 2019 (Exhibit A6);
(g)Letter from Romana Lee, dated 15 May 2019 (Exhibit A7);
(h)Letter from Dr Martin George, undated, (Exhibit A8);
(i)Applicant’s statement, including financial statement, utility payment arrangements, correspondence from ANZ Bank, diagnostic report and letter to National Disability Insurance Scheme enclosed, dated 18 March 2020 (Exhibit A9);
(j)Section 37 documents (T documents) numbered T1 to T55, comprising 746 pages, dated 8 March 2019 (Exhibit R1);
(k)
Supplementary section 37 documents, comprising pages 747 to 754, dated

5 April 2019 (Exhibit R2); and
(l)Respondent’s Statement of Facts, Issues and Contentions, inclusive of annexes
A to G, dated 4 December 2019 (Exhibit R3).
ISSUES
The issues to be determined in this matter are:
(m)
whether the Applicant was overpaid the Carer Payment for the period

17 November 2016 to 10 October 2018;
(n)whether the overpayment is a legally recoverable debt;
(o)whether the Applicant is required to repay the overpaid amount, or should part or all of the Carer Payment debt be waived or written off;
(p)
whether the Applicant was overpaid FTB during the period 1 July 2018 to

5 September 2018;
(q)whether the overpayment is a legally recoverable debt; and
(r)whether the Applicant is required to repay the overpaid amount, or should part or all of the debt be waived or written off for a period.
BACKGROUND
From 28 July 2015, the Applicant was paid a Carer Payment for the care provided to her son. The Applicant was paid at the single rate.
On 21 November 2016, the Department sent the Applicant a letter stating, ‘[w]e are writing to you to make sure you are receiving the correct rate of payment/s. To do this we need to confirm that we have your correct details’ (Exhibit R1, p 140). Departmental records show the letter was viewed online by the Applicant on 25 November 2016 (Exhibit R2, p 749).
On 25 November 2016, the Applicant scanned and uploaded a letter to her Centrelink records, stating the following:
I am writing to inform that I have commenced a relationship on 17th November 2016 with Jayson Priest.
He now resides at my residence of 7 Nautical Lane, Singleton as of the 17-11-16.
I have tryed [sic] to call but the line is very long
(Exhibit R1, p 142).
In response to this letter, on 21 January 2017, the Department called the Applicant, who was unable to talk because she was driving (Exhibit R1, p 651). On the same day, the Department sent the Applicant a letter with an enclosed SS284 Relationship Details form and a replied paid envelope. The Department requested the form be completed, signed and returned by 4 February 2017 (Exhibit R1, p 160).
On 2 February 2017, the Applicant uploaded the form to her Centrelink records.
The Applicant listed the Other Person as Jayson Priest, before marking ‘No’ to the question ‘Have you been married to or been in a registered relationship with the other person?’ (Exhibit R1, p 170). If the answer was ‘Yes’, she was instructed to contact the Department.
The Applicant also stated on the form that ‘He needed somewhere stable to live and we commenced a relationship’ and, in response to another question, ‘We are in a relationship and live together’ (Exhibit R 1, p 171-173).
On 1 March 2017, the Applicant uploaded a rent certificate to her records stating that
Mr Priest was her partner (Exhibit R1, p 185-186).
On 18 April 2017, the Applicant uploaded a letter to her records stating:
I am writing to inform centrelink [sic] that I got married on April 1^st 2017. I also wrote to inform I began a relationship last year in November 2016. I have tried to call many times and unfortunately cannot personally report to an office as I am my sons [sic] full time carer. I hope to receive a response soon
(Exhibit R1, p 207).
On 7 June 2017, the Applicant uploaded to her records a Newborn Child Declaration, listing Mr Jayson Priest as the father (Exhibit R 1, p 215).
On 25 February 2018, the Department wrote the Applicant requesting ‘more information to help us make the right decision about your claim for Carer Payment’. The Department requested the Applicant’s partner’s payslips from 17 November 2016 to 28 February 2018, statement from his bank accounts showing the account balance as at 1 January 2018 and all transactions for the three months before that date and a completed Mod (P) Partner details form (Exhibit R1, p 268).
On 9 March 2018, the Applicant uploaded the Mod (P) form and some payslips (Exhibit R1, p 271-284, p 381-444). On 27 July 2018, the Department requested payslips from
17 November 2017 to 27 July 2018 (Exhibit R1, p 301) and, on 16 August suspended her Carer Payment, because she had not complied with that request (Exhibit R1, p 303).
Having provided that information, the Applicant sought updates from the Department about the restoration of her Carer Payment (Exhibit R1, p 709-712).
On 15 October 2018, the Applicant received a notice from the Department stating that:
As you were a member of a couple on 17 November 2016 you were entitled to the partnered rate of payment of Carers payment from 17 November to 10 October 2018. The correct amount of you [sic] partner’s earnings from Thomas Tree Services, Treesneed Tree Surgeon, All Fence U Rent and Thermal Installation have also not been taken into account in the payments made to you. You have, therefore, been overpaid $24728.78. We are required to recover this (Exhibit R1, p 342).
Additionally, on the same date, the Department advised the Applicant
that she had incurred two FTB debts, the first debt was of $708.10 for the period 1 July 2016 to 30 June 2017 (Exhibit R1, p 334) and the second debt was of $529.30 for the period 1 July 2018 to

5 September 2018 (Exhibit R1, p 344).
The Applicant sought an appeal of the decisions and on 26 October 2018 was advised that the ARO found the decision to raise the Carer Payment debt of $24,728.78 correct (Exhibit R2, p 747). Separately, on the same day, the Applicant was advised, that the decision to raise a FTB debt of $708.10 had been waived, but the decision to raise a FTB debt of $529.30 had be upheld (Exhibit R1, p 357). However, the ARO noted that the Newborn Child Declaration form, submitted on 7 June 2017, was processed on 12 October 2018 and a portion of the back payments were used to recover the outstanding FTB debts (Exhibit R1, p 360).
On 7 November 2018, the Applicant sought a review of the decision relating to the Carer Payment debt and the FTB debt of $529.30 in AAT1. In her application, the Applicant stated:
I should not have a debt as i notified centrelink [sic] of my changes in circumstances many times which was ignored and they admit an ‘admin error’.
I received my carers payment in good faith as I believe the rate wouldn’t change wether [sic] I was married or not. (i believed ‘carers’ pension were not income tested, as opposed to parenting or newstart payments)
If centrelink had acknowledged my attempts to change my details through the online app they provide to do so, this would not have happened. I firmly believe I am not in the wrong and feel it is very unfair to leave me with such a large debt
(Exhibit R1, p 371).
On 6 February 2019, AAT1 affirmed the decision to raise the $24,728.78 Carer Payment debt, but found there was no further FTB debt.
On 13 February 2019, the Applicant sought a review of this decision in the Tribunal, stating:
I believe the decision is wrong because I had notified centrelink of my husbands [sic] income when they had asked for it, I completed every form on time and sent in payslips when I was asked to. I don’t believe I was in the wrong at all and it was soley an ‘admin’ error on centerlinks [sic] behalf. When centrelink acknowledged my attempts to advise them of my change in circumstances and asked for my husbands [sic] payslips, I sent them straight away.
Battling mental health issues myself and having two children with disabilities has left me and my husband in sever financial hardship and having this debt placed on us is extremely unfair.
(Exhibit R1, p 4)
LEGISLATIVE FRAMEWORK
The legislation relevant to the review of Carer Payment is the Social Security Act1991 (Cth) (the Act) and the Social Security (Administration) Act1999 (the Administration Act).

The legislation relevant to the FTB debt is A New Tax System (Family Assistance) Act1999 (the FA Act) and A New Tax System (Family Assistance) (Administration) Act 1999 (the FA Administration Act).
Section 210 of the Act provides that the Carer Payment rate is determined by using the Pension Rate Calculator A in s 1064 of the Act. Module B of that calculator provides a different rate depending on whether the recipient was not a member of a couple, or single, or was partnered. The partnered rate is less than the single rate.
Additionally, Module E provides that, if a person is a member of a couple, then the couple’s income must considered when determining the rate paid.
The effect of the above provisions is that, when determining the Applicant’s Carer Payment, the calculator required her relationship status and an assessment of both hers and her partner’s income.
Subsection 68(2) of the Administration Act provides for the following:
(2)The Secretary may give a person to whom this subsection applies a notice that requires the person to do any or all of the following:
(a)inform the Department if:
(i)a specified event or change of circumstances occurs; or
(ii)the person becomes aware that a specified event or change is likely to occur;
(b)give the Department one or more statements about a matter that might affect the payment to the person of the social security payment;
…
Section 100(1) of the Administration Act provides that, if a person receiving a social security payment is given notice under s 68(2) as detailed above, and there is a change of circumstances and the person does not inform the Department of that change, the social security payment becomes payable to that person at the reduced rate on the day on which the change of circumstance occurs.
In accordance with s 68(2), the Applicant was required to notify the Department to provide updates on her personal circumstances, including whether she was in a relationship and any information pertaining to her or her partner’s income. Moreover, as detailed in s 100(1), the Carer Payment would be payable at reduced rate from the point in which she entered a relationship with Mr Priest.
Section 1223 of the Act provides that if a social security payment is made and the person who obtains the benefit was not entitled for any reason to obtain that benefit,

then ‘the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to have arise when the person obtains the benefit of the payment,’ which allows overpayments of social security benefits to be recovered as a debt due to the Commonwealth.
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) the debtor has died leaving no estate or insufficient funds in the debtor's estate to repay the debt.
Section 1237 of the Act makes provision to waive the Commonwealth’s right to recover all or part of the debt in certain defined circumstances. Section 1237A(1) provides that:
…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 the proportion of the debt.
It does not allow for waiver of part of a debt that was caused partly by administrative error and partly by other factors.
Section 1237 also provides for the waiving of the debt in ‘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.
With respect to the legislative framework surrounding the FTB debt, Schedule 1 of the FA Act sets out the means by which the FTB is calculated, which has regard to a person’s marital status and the number of children.
Section 71 of the FA Administration Act provides that if an amount has been paid to a person by way of FTB and the person was not entitled to the assistance in respect of that period, the amount paid is a debt due to the Commonwealth.
Section 96 of the FA Administration Act provides the Commonwealth the ability to waive the right to recover whole of part of a debt. Similar to the provisions in the Social Security Act1991, detailed above, and relevant to the matter before the Tribunal, they include s 97, waiver of debt arising from error, and s 101, waiver in special circumstances.
Section 97 provides that the Secretary must waive the right to recover the proportion of the debt attributable to sole administrative error by the Commonwealth, if:
(a)The debtor received in good faith the payments;
(b)The person would suffer financial hardship if it were not waived; and
(c)The debt is raised after a period of 13 weeks starting on the day on which the payment which gave rise to the debt was made.
CONSIDERATION OF THE CARER PAYMENT DEBT
The Applicant does not dispute that she was overpaid the Carers Payment by being paid the single rate when she was partnered. Her contention is that she informed Centrelink on more than one occasion and that the administrative error was Centrelink’s.
Moreover, she pointed to the significant challenges she was facing in being the carer of two special needs children. In material provided to the Tribunal, the Applicant stated she was caring for two non-verbal children with severe autism. The Applicant states that her eldest son has significant behavioural challenges and is home schooled (Exhibit A1, p1).
The Applicant provided a number of submissions to the Tribunal relating to the condition of her two sons and their Autism Spectrum Disorder. The Applicant also advised that she had been diagnosed with her own mental health conditions and that her partner has ceased working to assist with the care of the children.

The question before the Tribunal is whether the circumstances of this matter would enliven s1236 or s1237. In considering this question, it is appropriate to consider some of the general principles in this regard, outlined by French J in Secretary, Department of Social Security v Hales [1998] FCA 219:
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 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 the waiver of debts otherwise due to the Commonwealth... 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.
Subsection 1236(1A) provides that a debt may be written off, if the debt is irrecoverable at law, or the debtor has no capacity to repay the debt, or the debtor’s whereabouts are unknown or it is not cost effective for the Commonwealth to take action to recover the debt.
In this matter, the debt is not irrecoverable at law, the debtor’s (that is the Applicant’s) whereabouts are known and it is cost effective for the Commonwealth to recover the debt. The question then turns on the Applicant’s capacity to pay the debt.
In a hand written submission to the Tribunal dated 18 March 2020, the Applicant stated, ‘We are really struggling financially because of our family circumstances and have no means to repay the debt (Exhibit A9, p1).’ The Applicant also included a fortnightly income and expenditure table that had been developed with the assistance of a financial counsellor provided by the Red Cross. This table recorded a fortnightly income of $2,200 with committed expenses during the period of $2,179.85 (Exhibit A9, p 2).
The Respondent contends that the Applicant has the capacity to repay the debts raised, albeit in small amounts:
The Applicant is currently in receipt of Carer Payment of $703.50 per fortnight and FTB of $405.30 per fortnight. There is no evidence that the Applicant would be in severe financial hardship if the debt was recovered via minimal withholdings (e.g. $20 per fortnight) from her fortnightly income.
(Exhibit R3, p 8)
On the evidence available, it is clear that the Applicant’s family is under financial stress and has limited means. However, this, in of itself, is not evidence of an incapacity to pay.

The household is in receipt of a number of social security payments and an appropriately designed repayment method is within the Applicant’s capacity. Therefore, the debt cannot be written off under s 1236.
Section 1237A of the Act states the debt may be waived if it is ‘solely attributable to an administrative error made by the Commonwealth if the debtor received in good faith the payments…’.
It clear from the evidence available that a number of errors were made by the Department advice provided by the Applicant to Centrelink was not acted upon or not acted upon in a timely manner. It is arguable that, had Centrelink been more responsive, the debt incurred by the Applicant would have been smaller.
However, the Act clearly states ‘solely attributable’. The notion of ‘sole administrative error’ has been addressed by the Federal Court on a number of occasions, notably in Secretary, Department of Family and Community Services v Sekhon [2003] FCA 76 and Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC. In the former, Wilcox J stated:
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.
In the latter, Selway J stated:
The ordinary or usual interpretation of the phrase ‘attributable solely to’ is that it refers to the single or sole cause of the relevant act or event. The word ‘attributable’ means ‘capable of being attributed’. It involves an objective assessment of causation. The words ‘a debt attributable solely to an administrative error’ can be paraphrased as meaning that the only cause that objectively can be ascribed to the relevant debt is an administrative error.
The Respondent contends that:
… the debt was not solely caused by the Department’s actions given a significant factor in the debt arising was the Applicant’s failure to meet her notification obligations and advise the Department about her partner’s income…
The Applicant did not report any of her partner’s income during the debt period
(Exhibit R3, p 9).
The ARO noted the following:
On 25 November 2016 you [the Applicant] viewed the letter sent on 21 November 2016 asking you to call to discuss your payment which was under review. You did not call the direct number as requested but scanned a letter to the department advising you were in a relationship with Jayson Priest from 17 November 2016.
You regularly checked online services and were aware your record had not been updated but chose not to call the department to correct this, despite having a direct phone number…
(Exhibit R2, p 751)
It cannot be said in this matter that the debt is solely attributable to the Commonwealth, therefore s 1237A cannot apply. With respect to the notion of ‘good faith’, as stated in s1237A, the Tribunal notes the Federal Court’s statement in Jazazievska v Secretary Department of Family & Community Services [2000] FCA1484, that:
A person does not act in good faith where the person turns a blind eye to circumstances which raise doubt to the entitlement of the person to receive and retain the payment or refuses to make reasonable enquiries where doubt exists.
A lack of good faith does not mean that the recipient must be acting fraudulently when the payment is received and retained. It means that for whatever reason, the recipient acts without an honest belief that he or she was entitled to receive or retain the payment when he or she receives the payment and decides to exercise control over it by retaining it.
Where there is actual doubt about entitlement and a person turns a blind eye to the matter, rather than making enquiries, there will not be good faith, but mere puzzlement will not be enough.
The Respondent contends that ‘the Applicant did not receive the payments in good faith because during the debt period she knew, or had reason to know that becoming partnered and her partner’s income were likely to impact on her rate of payment’ (Exhibit R3, p 11).
The Applicant received notices from the Department during the debt period, instructing her to contact the Department should there be changes to her circumstances. As the Respondent notes, the Applicant received correspondence on 29 September 2015 and

7 July 2016, advising that she need to advise the Department within 14 days for any changes relating to her income (including that of a partner) and earnings (Exhibit R3, p 2).
Putting aside the matter of the Carer’s Payment, the Applicant also received correspondence from the Department relating to rent assistance (Exhibit R1, p 156) and her FTB (Exhibit R1, p 121, 123, 129, 131,158, 227, 230, 236, 239, 260, 263, 266). These letters all note, in some form or another, the requirement for the recipient to advise the Department of any changes to their income and that of their partner. Taken together, the correspondence clearly underlines the importance of partner status and income when assessing payments.
It is evident that the Applicant had reason to know that having a partner and her partner’s income would have been of interest to the Department. The Applicant might reasonably be said to have turned a blind eye to ‘circumstances which raise doubt to the entitlement of the person to receive and retain the payment’ and therefore did not demonstrate good faith.
Section 1237AAD of the Act provides for the waiving of debt due to special circumstances where:
(a)The debt did not wholly or partly result from the debtor knowingly making a false presentation or failing to comply with a provision of the Act; and
(b)There are special circumstances other than financial hardship alone;
(c)It is more appropriate to waive than write off the debt or part of the debt.
The meaning of the word ‘knowingly’ has been the subject of consideration across a number of jurisdictions. The Respondent cites the Court of Appeal in the Supreme Court of New South Wales, in RCA Corporation v Custom Cleared Sales Pty Ltd (1978) 19 ALR 123, which said:
In inferring knowledge, a court is entitled to approach the matter in two stages; where opportunities for knowledge on the part of the particular person are proved and there is nothing to indicate that there are obstacles to the particular person acquiring the relevant knowledge, there is some evidence from which the court can conclude that such a person has the knowledge. However, this conclusion may be easily overturned by a denial on his part of the knowledge which the court accepts, or by a demonstration that he is properly excused from giving evidence of his actual knowledge.
The Respondent also points to Senior Member Dunne’s observation in Wall and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 740:
Following the decision in RCA Corporation, it is open to the Tribunal to infer that a person had actual knowledge of their obligations under the Act where there were opportunities for them to gain that knowledge and where there were no obstacles to them acquiring the knowledge. In the present case, the respondent sent letters to the applicant notifying him of his obligations under the Act. However, there may well have been obstacles that would have prevented Mr Wall from being alert enough to understand his obligations under the Act. Those obstacles were his inebriated state at the time of the overpayments.
The Applicant had many opportunities for knowledge, or put another way, to understand the provision of information relating to her partner and his income were required.

The requirement was explicit in the correspondence from the Department and indeed implicit also in their requests for the Applicant to provide further information. There is no evidence before the Tribunal that might explain where there were obstacles to the acquisition of that knowledge.
The question then turns to ‘special circumstances’. As the Respondent notes, there is an extensively body of case law that has considered this term. It is not necessary to canvass all of those decisions, however it is worth highlighting some key decisions which have guided subsequent deliberations of the Tribunal.
In Beadle and Director-General of Social Security [1984] AATA 176 at [12]-[13], the Tribunal made the following observations:
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.
The question must be asked…, what is the context in which circumstances are to be adjudged special or not special…
Deputy President Forgie expanded on the concept of circumstances in Davy and Secretary of Employment and Workplace Relations [2007] AATA 1114 at [80]:
The “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... 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…
The Respondent contends that:
While the Applicant’s children have high needs, this is not uncommon or unusual in the recipients of Carer Payment. Further, the relative stress and financial strain it places on a person is also not uncommon or unusual. The Applicant and her partner are in receipt of various social security payments are supported by various organisations in relation to their children. The Applicant is receiving support for her own mental health under a Mental Health Care Plan.
(Exhibit R3, p14)
Notwithstanding the challenging circumstances the Applicant finds herself in, based on the evidence available, it is not open to for the Tribunal to find that her situation is sufficiently unique or unusual that it would reach the threshold of ‘special circumstances’, not least in that it would effectively enable the Applicant to have the benefit of entitlement which she was not entitled to.
The Tribunal finds that the Applicant’s circumstances do not warrant the application of

s 1237AAD.
FTB Debt
Section 71 of the FA Administration Act provides that if an amount has been paid to a person by way of FTB and the person was not entitled to the assistance in respect of that period, the amount paid is a debt due to the Commonwealth. The Applicant was paid FTB of $2,178.84 for the period 1 July 2018 to 5 September 2018 which did not account for her being partnered. She was only entitled to be paid $1,649.54 for that period and the debt of $529.20 was raised on 15 October 2018. The debt the Applicant owes for the FTB has been repaid in a reconciliation process relating to owed arrears FTB for her second child.
As discussed previously, on 1 March 2017, the Applicant uploaded a rent certificate to her records stating that Mr Priest was her partner (Exhibit R1, p 185-186). On 18 April 2017, the Applicant uploaded a letter to her records stating she was married to Mr Priest on
1 April 2017 (Exhibit R1, p 207).
On 7 June 2017, the Applicant uploaded to her records a Newborn Child Declaration, listing Mr Jayson Priest as the father (Exhibit R 1, p 215).
The Secretary accepts the FTB debt above, was ‘caused by sole administrative error in that the only factor which caused overpayment as the Applicant’s change in relationship status... There is no dispute that the Applicant advised the Department that she was partnered… prior to 1 July 2018’.
However, the Respondent also points out that given the debt has already been repaid, severe financial hardship cannot be established, additionally that the debt was not raised after more than 13 weeks after the debt period, so s97(3) of the FA Administration Act cannot be met (Exhibit R3, p 16).
The Tribunal concludes that the provisions of s 97 cannot be met in this matter, there the debt cannot be waived.
Section 101 of the FA Administration Act provides for the waiver of the debt in ‘special circumstances’, similar to s 1237ADD in the Social Security Act. However, the Tribunal concludes, that just as with the Carer Payment, those conditions are not met and cannot be waived.
DECISION
The Reviewable Decision, being the decision of the AAT1 dated 6 February 2019 is affirmed.

I certify that the preceding 84 (eighty-four) paragraphs are a true copy of the reasons for the decision herein of Member Barton

..................................[SGD]................................
Associate
Dated: 13 August 2020

Date(s) of hearing: 8 May 2020

Applicant: In person

Counsel for the Respondent: Mr A Burgess

Solicitors for the Respondent: Sparke Helmore Lawyers

[2020] AATA 3048

13 August 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Appeal

Date(s) of hearing:	8 May 2020
Applicant:	In person
Counsel for the Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers