PZXT and Secretary, Chief Executive Centrelink Secretary, Department of Education (Social security second review)

PZXT and Secretary, Chief Executive Centrelink Secretary, Department of Education (Social security second review) [2025] ARTA 1046 (7 July 2025)
Review number: 2023/7482, 2023/7483, 2023/7486
Applicant:PZXT
Other Parties: Secretary, Chief Executive Centrelink
Secretary, Department of Education

Tribunal Numbers: 2023/7482, 2023/7483, 2023/7486
Tribunal:Senior Member T Hamilton-Noy (second review)
Place:Melbourne
Date:7 July 2025
Decision:The Tribunal affirms the decisions under review.

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Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 161(1B)–161(1C) of the A New Tax System (Family Assistance) (Administration) Act 1999.

Catchwords
Family tax benefit debts – schoolkids bonus debt – grandparent child care benefit debts – incorrect representation that grandchildren were in the Applicant’s care – no administrative error – knowingly – false statement or false representation
Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
A New Tax System (Family Assistance) Act 1999
A New Tax System (Family Assistance) (Administration) Act 1999
Cases
Cox and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 350
Director of Social Services v Hales (1998) 47 ALR 281
Re Callaghan and Secretary, Department of Social Security [1996] AATA 413
Re Lumsden and Secretary, Department of Social Security [1986] AATA 228
Re Stubbs and Secretary, Department of Families and Community Services [2003] AATA 729
Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190
Ward and Secretary, Department of Families and Community Services [2000] AATA 212
Statement of Reasons
Background

This application relates to the raising and recovery of a series of debts from the Applicant by Services Australia (Centrelink).
Between September 2015 and July 2017, Centrelink made payments to the Applicant in respect of family tax benefit and schoolkids bonus and by way of fee reduction for care provided to the Applicant’s four grandchildren for care by approved child care services.
On 4 July 2022, following a review of her circumstances, an employee of Centrelink decided to raise and recover the following debts from the Applicant:
(i)Debt of $129,254.90 for overpayment of grandparent child care benefit between 19 October 2015 and 3 July 2016;
(ii)Debt of $121,689.74 for overpayment of grandparent child care benefit between 4 July 2016 and 2 July 2017;
(iii)Debt of $19,234.88 for overpayment of family tax benefit between 28 September 2015 and 30 June 2016;
(iv)Debt of $22,457.16 for overpayment of family tax benefit between 1 July 2016 and 14 May 2017; and
(v)Debt of $1,716 for overpayment of schoolkids bonus between 1 January 2016 and 30 June 2016.
Following a request for an internal review of this decision, on 26 October 2022, an authorised review officer of Centrelink affirmed the decision to raise and recover the debts.
The Applicant applied to the Administrative Appeals Tribunal (the AAT) for an independent review of the Centrelink decision and, on 21 September 2023, the AAT at first review affirmed the decision to raise and recover the debts.
The Applicant then applied for a second review of the AAT decision on 11 October 2023.
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The Tribunal hearing in this matter was conducted on 23 June 2025. The Applicant attended the hearing in person and gave evidence on oath. She was supported at the hearing by a family friend, who was listed as her representative, but who indicated to the Tribunal that they were not seeking to make submissions at the hearing but were there to support the Applicant. A representative of the Respondent also attended the hearing in person. The Tribunal was assisted at the hearing by an interpreter in the Arabic Lebanese and English languages. The Tribunal had a large number of documents before it at the time of the hearing provided by both of the parties, the relevant parts of which are referred to further below.

Issues and relevant law

The legislative requirements relevant to this matter are contained in the A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act) and the A New Tax System (Family Assistance) (Administration) Act 1999 (the Family Assistance Administration Act). The Tribunal must consider in this matter whether there are debts owing to the Commonwealth and, if so, whether there is any reason the debts should not be recovered by Centrelink.

Are there debts due to the Commonwealth?

Family tax benefit

The qualification requirements for family tax benefit are set out in subsection 21(1) of the Family Assistance Act, which states that an individual is qualified for family tax benefit in the following circumstances:[1]
[1] Subsections 21(1A), (1B) and (1C) of the Family Assistance Act set out other circumstances in which an individual will qualify for family tax benefit. These relate to specified visa holders and do not apply in the current case.
(1)  An individual is eligible for family tax benefit if:
(a)   the individual:
(i)  has at least one FTB child; or
(ii)  has at least one regular care child who is also a rent assistance child; and
(b)   the individual:
(i)  is an Australian resident; or
(ia) is a special category visa holder residing in Australia; or
(ii)  satisfies subsection (1A) or (1B); and
(c)   the individual's rate of family tax benefit, worked out under Division 1 of Part 4 but disregarding reductions (if any) under clause 5 or 25A of Schedule 1 and disregarding section 58A and subclauses 31B(3), 38AA(3) and 38AF(3) of Schedule 1, is greater than nil.
An FTB child is defined in section 22 of the Family Assistance Act. Where a child is under 16 years of age, subsection 22(2) states that the child (“the individual”) is an FTB child of an adult if:
(a)   the individual is aged under 16; and
(b)   the individual is in the adult's care; and
(c)   the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult; and
(d)   the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph (5)(a), (b) or (c).
Where the child is 16 to 17 years of age, subsection 22(3) of the Family Assistance Act states that in addition to the above requirements, the child must also be a senior secondary school child. The circumstances surrounding legal responsibility for the care of a child are defined in paragraphs 22(5)(a), (b) and (c) of the Family Assistance Act to be:
(a)   the adult is legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the individual; or
(b)   under a family law order, registered parenting plan or parenting plan in force in relation to the individual, the adult is someone with whom the individual is supposed to live or spend time; or
(c)   the individual is not in the care of anyone with the legal responsibility for the day-to-day care, welfare and development of the individual.
Subsection 22(5) of the Family Assistance Act provides that if an individual’s percentage of care for a child during a care period is at least 35%, the child is taken to be an FTB child of the individual for the purposes of the section, on each day in that period, whether or not the child was in that individual’s care on that date. Section 25 of the Family Assistance Act states that if an individual’s percentage of care for a child during a care period is less than 35%, the child is taken not to be an FTB child of that individual for any part of the period.
The Applicant was paid family tax benefit in the 2015/16 and 2016/17 financial years. These payments arose due to an online claim, reflected in the “DOC” records as having been submitted on 7 October 2015 in respect of all four children.
Following lodgement of the family tax benefit claim, the Applicant was sent a letter by Centrelink dated 16 November 2015, in relation to her family tax benefit payments. The letter set out a lump sum amount that would be paid to her for the period 28 September 2015 to 18 November 2015 and then a regular payment amount that would be paid from 26 November 2015, in respect of her four grandchildren (who were named in the letter). The letter noted that: “You have told us you want to receive all of your Family Tax Benefit as fortnightly payments based on your estimated income and child details shown on this letter”.
A further letter was sent to the Applicant on 22 June 2016, again noting her rate of family tax benefit and referring to her four grandchildren.
No response was received to these pieces of correspondence and the Applicant’s evidence at the hearing was that she was not aware the payments were being made to her. She did not dispute that her four grandchildren were not in her care during the 2015/16 and 2016/17 financial years and the Tribunal notes she has consistently stated this, in information provided to Centrelink and to the AAT at first review.
The Applicant initially provided a signed statement to Centrelink, dated 29 March 2022, in which the following was prepared on her behalf:
[The Applicant] does not drive or have a licence. [The Applicant] has never cared for anyone’s children, she is illiterate and can’t even read or write in her native tongue, she was not aware of any payments made to her account as when payments were withdrawn when they were accompanied by [her stepdaughter] on all occasions. [Her stepdaughter] also had access to all their mail so she read and explained what she wanted to them as she saw fit. [Her stepdaughter] had access to all their personal details pension, cards, bank book, dads drivers licence etc. so she was able to apply for benefits under the pretence she was helping them. She abused their trust and took advantage of lack of literacy and used their identity to seek her own benefits.
During Centrelink’s internal review of this matter, the Applicant provided Centrelink with a range of statements, all indicating she had not had the children in her care. These included statements prepared by the children’s father, by another stepdaughter of the Applicant, by a range of people claiming to have known the Applicant for significant periods of time, by the Applicant’s representative (consistent with oral information the representative had given to a customer service officer in September 2022), by a neighbour and by three of the children. Documents were also provided relating to the children’s schooling and attendance for treatment which reflected that the children were living with their father during the period being reviewed by the Tribunal.
The Tribunal accepted the Applicant’s evidence, and the written documents prepared on her behalf, that she did not have her grandchildren in her care between September 2015 and July 2017. None of the four grandchildren were FTB children for the purposes of the Applicant’s receipt of family tax benefit and she was not qualified for family tax benefit in either the 2015/16 financial year or the 2016/17 financial year. The Respondent has calculated, and the Tribunal accepts, that the Applicant was paid family tax benefit totalling $19,234.88 between 28 September 2015 and 30 June 2016 and $22,457.16 between 1 July 2016 and 14 May 2017.
Subsection 71(1) of the Family Assistance Administration Act states that:
If:
(a)an amount has been paid to a person by way of family tax benefit, stillborn baby payment or single income family supplement (the assistance) in respect of a period or event; and
(b)the person was not entitled to the assistance in respect of that period or event;
the amount so paid is a debt due to the Commonwealth by the person.
The Tribunal was provided statements for the Applicant’s joint bank account with her husband, which showed family assistance payments being made into the account during the debt period. The Applicant did not dispute that she held the joint bank account in question with her husband or the veracity of the records reflecting the family tax benefit payments being made into her account. The Tribunal found from the evidence before it that the payments were amounts paid to the Applicant by way of family tax benefit, within the meaning of subsection 71(1) of the Family Assistance Administration Act.
As the Applicant was not qualified for family tax benefit due to not having FTB children in her care, she was not entitled to the family tax benefit payments made to her between 28 September 2015 and 14 May 2017. The amounts of $19,234.88 and $22,457.16 are debts due to the Commonwealth under subsection 71(1) of the Family Assistance Administration Act.

Schoolkids bonus payments

As of the 2015/16 financial year, qualification for the schoolkids bonus was determined by section 35UA of the Family Assistance Act. Subsection 35UA(1) was of relevance where a person was otherwise receiving family tax benefit and provided that:
(1) An individual is eligible for schoolkids bonus on a bonus test day if:
(a) in relation to the bonus test day:
(i) a determination under section 16 or 17 of the Family Assistance Administration Act is in force in respect of the individual as a claimant; or
(ii) a determination under section 18 of the Family Assistance Administration Act is in force in respect of the individual because the Secretary is satisfied that the individual is eligible for family tax benefit under section 32 of this Act; and
(b)   the individual’s rate of family tax benefit on the bonus test day, worked out under Division 1 of Part 4 but disregarding reductions (if any) under clause 5 or 25A of Schedule 1, consisted of or included a Part A rate greater than nil; and
(c)   that rate was worked out taking into account one or more FTB children of the individual who are relevant schoolkids bonus children of the individual for the bonus test day; and
(d)   the individual’s adjusted taxable income for the income year in which the bonus test day occurs is $100,000 or less.
The Tribunal accepted from a “One off payments (OOP)” screen provided by the Respondent that a series of schoolkids bonus payments were made to the Applicant between 4 January 2016 and 4 July 2016 and that the payments totalled $1,716.
The Tribunal finds that the Applicant was not qualified for the schoolkids bonus payments made to her, on the basis that her rate of family tax benefit on the relevant bonus test days was not greater than nil. The amount of $1,716 relating to schoolkids bonus paid to the Applicant, as a component of her family tax benefit payments, is also a debt due to the Commonwealth under subsection 71(1) of the Family Assistance Administration Act.

Grandparent child care benefit

As of October 2015, the qualification requirements for the payment of child care benefit were set out in Division 4 of Part 3 of the Family Assistance Act. Subsection 42(1) of the Family Assistance Act stated as follows:
(1) An individual is conditionally eligible for child care benefit by fee reduction for care provided by an approved child care service to a child if:
(a) the child is an FTB child, or a regular care child, of the individual, or the individual’s partner; and
(b) the individual, or the individual’s partner:
(i) is an Australian resident; or
(ia) is a special category visa holder residing in Australia; or
(ii) satisfies subsection (1A); or
(iii) is undertaking a course of study in Australia and receiving financial assistance directly from the Commonwealth for the purpose of undertaking that study; and
(c) where the child is under 7 and born on or after 1 January 1996, either:
(i) the child meets the immunisation requirements set out in section 6; or
(ii) a pre‑notice period is operating in respect of the individual and the child (see subsection (3)); or
(iii) a 63 day notice period is operating in respect of the individual and the child (see section 57E of the Family Assistance Administration Act).
Section 50F of the Family Assistance Administration Act provided that, if the Secretary was satisfied that the claimant, at the time the Secretary made the determination, was conditionally eligible under section 42 of the Family Assistance Act in respect of a child, the Secretary must determine that the claimant was conditionally eligible for child care benefit by fee reduction in respect of the child.
Section 50S of the Family Assistance Administration Act then provided that an individual was eligible for the special grandparent rate for a child in the following circumstances:
(1) An individual is eligible for the special grandparent rate for a child if:
(a)   the individual, or the individual’s partner, is receiving:
(i) a social security pension; or
(ii) a social security benefit; or
(iii) a service pension; or
(iv) an income support supplement under Part IIIA of the Veterans’ Entitlements Act 1986; and
(b)   the individual, or the individual’s partner, is the grandparent or great‑grandparent of the child; and
(c)   the individual, or the individual’s partner, is the principal carer of the child.
(2) For the purposes of subsection (1), a person is the principal carer of another person (the child) if the person:
(a)   is the sole or major provider of ongoing daily care for the child; and
(b)   has substantial autonomy for the day‑to‑day decisions about the child’s care, welfare and development.
(3) An individual is also eligible for the special grandparent rate for a child if the individual, or the individual’s partner, is eligible under subsection (1) for the special grandparent rate for another child.
The Respondent states, and the Tribunal accepts, that the granting of grandparent child care benefit commenced as a result of contact with Centrelink on 17 November 2015 about the four children attending child care, which Centrelink records indicate was made by the Applicant.
Section 50V of the Family Assistance Administration Act required notice to be given to a claimant, of a determination under section 50T that a claimant is eligible for a special grandparent rate for a child. The Tribunal accepted that the Applicant was sent correspondence by Centrelink dated 17 November 2015, which was headed “Assessment Notice of Child Care Benefit for approved care” and noted that the Applicant’s family had been assessed as being entitled to the maximum rate of child care benefit, that the Applicant’s income details were not required as she was receiving an income support payment, and named her four grandchildren as the relevant children in her care. The letter also noted that:
Your new assessment will start on 17 November 2015. You are eligible for up to 24:00 hours of Child Care Benefit a week for each child in approved care. Make sure you have this letter with you when you give your service provider your details.
Child Care Benefit and your child care fees
Child Care Benefit is a subsidy which reduces your child care fees. Your child care service provider will advise you of the fee for their service and the amount of Child Care Benefit to which you are entitled. The amount you pay for child care will be the difference or ‘gap’ between your Child Care Benefit and the fee your child care service provider charges.

A further letter was sent to the Applicant on 18 November 2015 about child care benefit, noting that the rate was being calculated, in part, on the Applicant’s role as a primary carer of a grandchild. The Tribunal accepted that subsequent correspondence was sent to the Applicant on 24 August 2016 and 30 August 2016 about the child care benefit being paid.
Where a determination is made under section 51A of the Family Assistance Administration Act in relation to a determination made after the end of each income year, section 51B of the Family Assistance Administration Act required notice to be given. The Tribunal accepted that the Applicant was sent correspondence by Centrelink dated 26 July 2016 in respect of the 2015/16 financial year, and on 25 July 2017 in respect of the 2016/17 financial year.
Paragraph 50S(1)(c) of the Family Assistance Administration Act requires that, to be eligible for special grandparent rate for a child, the individual or their partner must be the principal carer of the child. As set out above, this is defined in subsection 50S(2) of the Family Assistance Administration Act to be the sole or major provider of ongoing daily care for the child and as having substantial autonomy for the day-to-day decisions about the child’s care, welfare and development. Based on the Applicant’s evidence that her four grandchildren were not in her care at all during the period under review, the Tribunal finds that she was not the principal carer of any of the children during 2015/16 and 2016/17 and she did not meet the qualification requirements for grandparent child care benefit to be paid.
At the time the payments were made, paragraph 71B(1)(a) of the Family Assistance Administration Act stated that if an approved child care service was required, under section 219B, to pass an amount on to an individual in respect of one or more sessions of child care provided by the service to a child, but the individual was not entitled to child care benefit in respect of the sessions of care, the amount paid was a debt due to the Commonwealth.[2] The Tribunal accepted from the information provided by the Respondent that the Applicant owes debts to the Commonwealth in respect of grandparent child care benefit payments made, totalling $129,254.90 for the period 19 October 2015 to 3 July 2016 and $121,689.74 for the period 4 July 2016 to 2 July 2017.
[2] As noted in the Respondent’s submissions (at 5.33), Schedule 4 to the Family Assistance Legislation Amendment (Jobs for Families Child Care Package) Act 2017, at Part 3, Item 8, debts to the Commonwealth may be incurred after the commencement day (2 July 2018) in respect of payments made before the commencement day, and the debts can be recovered after the commencement day.

Are the debts recoverable by the Respondent?

As the Tribunal has found there are debts due to the Commonwealth, the Tribunal has gone on to consider whether there is any reason the debts should not be recovered by the Respondent.
The Respondent has noted, in written submissions provided to the Tribunal, that there is an expectation that money paid where there was no entitlement will be recovered. In particular, the Federal Court in Director of Social Services v Hales (1998) 47 ALR 281 stated that:
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 lead to the overpayment and the circumstances of the persons concerned.

Write off

Subsection 95(2) of the Family Assistance Administration Act allows that a debt may be written off for a period of time where:
(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.
Subsection 95(3) of the Family Assistance Administration Act states that a debt is irrecoverable at law if, and only if:
(b)   there is no proof of the debt capable of sustaining legal proceedings for its recovery; or
(c)   the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or
(d)  the debtor has died leaving no estate or insufficient funds in the debtor's estate to repay the debt.
Subsection 95(4) of the Family Assistance Administration Act states that:
(4)  For the purposes of paragraph (2)(b), if a debt is recoverable by means of:
(a)  deductions under section 84; or
(aa) deductions under section 1231 of the Social Security Act 1991; or
(b)  setting off under section 84A family assistance; or
(c)  application of an income tax refund under section 87; or
(d)  setting off under section 87A against a payment referred to in paragraph 82(1)(c) (child care service payments);
the person is taken to have a capacity to repay the debt unless recovery by those means would cause the person severe financial hardship.
The Applicant gave evidence at the hearing that amounts are being withheld from her jobseeker payment and she is currently receiving $700 per fortnight from Centrelink. She told the Tribunal that she is paying a mortgage on her home, but does not know how much that is. She clarified in her evidence to the Tribunal that no one else is assisting her with her finances. When asked why, if she was the only person managing her finances, she could not clarify how much her mortgage payments were, she responded by stating that she hasn’t experienced something like this before. Following a break, the Applicant then told the Tribunal that her house is paid off and she doesn’t owe a mortgage.
The Respondent submits that write off of the debt is not available in this case and that, in particular, the Applicant is receiving jobseeker payment of $849.50 per fortnight and has the capacity to set up a modest payment plan to repay the debt by way of withholdings from her social security payments (the Respondent’s representative submitted at the hearing that they were instructed the debt was paused while the Tribunal is considering the matter, in contrast to the Applicant’s evidence as outlined above that an amount of $150 per fortnight appears to be being withheld).
The Respondent submits that such an arrangement would not cause severe financial hardship to the Applicant, having regard to relevant case law. This includes the matter of Re Lumsden and Secretary, Department of Social Security [1986] AATA 228, where the AAT found that a person’s entire financial position would need to be materially less than the current rate of pension for severe financial hardship to be established. Further, the Respondent noted the comments of the AAT in Re Stubbs and Secretary, Department of Families and Community Services [2003] AATA 729, where the AAT stated that:
Severe financial hardship, while not implying destitution, goes beyond straitened financial circumstances and imports a need for the particular case of a person to include financial suffering of a severe or extreme nature.
The Tribunal finds that the debts are recoverable at law, the Applicant’s whereabouts are known and that, given the size of the debts, it is cost effective for the Commonwealth to take action to recover the debts. As to whether the Applicant has no capacity to repay the debt, the Tribunal was not provided any evidence by the Applicant as to her current expenses, aside from her evidence at the hearing that she no longer has a mortgage over her home. The Tribunal is prepared to accept that the Applicant is currently receiving jobseeker payment of $700 per fortnight, apparently due to withholdings towards a debt; however, does not accept on the evidence provided by the Applicant that, even with the reduced amount the Applicant is currently receiving, recovery would cause the Applicant severe financial hardship. The grounds for writing the debts off for a period of time are not met.

Waiver – Administrative error

Section 97 of the Family Assistance Administration Act states that a debt must be written off in the following circumstances:
(1)   The Secretary must waive the right to recover the proportion (the administrative error proportion) of a debt that is attributable solely to an administrative error made by the Commonwealth if subsection (2) or (3) applies to that proportion of the debt.
(2)   The Secretary must waive the administrative error proportion of a debt if:
(a)   the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt; and
(b)   the person would suffer severe financial hardship if it were not waived.
(3)   The Secretary must waive the administrative error proportion of a debt if:
(a)   the payment or payments were made in respect of the debtor's eligibility for family assistance for a period or event (the eligibility period or event) that occurs in an income year; and
(b)   the debt is raised after the end of:
(i)  the debtor's next income year after the one in which the eligibility period or event occurs; or
(ii)   the period of 13 weeks starting on the day on which the payment that gave rise to the debt was made;
whichever ends last; and
(c)   the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt.
(4)   For the purposes of this section, the administrative error proportion of the debt may be 100% of the debt.
The Applicant does not submit that sole administrative error by Centrelink has caused the debts in this matter. Rather, she asserted at the hearing that she was not aware claims for family assistance payments had been made in her name, she did not sign any of the relevant documentation, that signatures in her name were forged by her stepdaughter, and she was not aware of any payments being made into her account.
The Respondent submitted that the debts are not able to be waived under this provision for the following reasons:[3]
(c)The Applicant was assessed to be eligible for, and entitled to receive, payments for FTB, GCCB and SKB because information was provided, either by the Applicant or [her stepdaughter], that the children were in her care;
(d)This information was reinforced by further representations made by the Applicant or [her stepdaughter] throughout the period from 17 November 2015 to 16 May 2017 to the effect that the children remained in the care of the Applicant and were not in the care of [her stepdaughter] (or anyone else);
(e)Where information was provided by [her stepdaughter] on behalf of the Applicant, reliance on that information was permitted by s.219TG of the FA Admin Act;
(f)The Applicant and [her stepdaughter] were informed of the obligation to provide notice of any change in circumstances, including if the Applicant ceased to be the primary carer of her grandchildren;
(g)Notice was not provided until 16 May 2017 that the children were not in the care of the Applicant (noting that the notice provided was that the children had ‘left’ the care of the Applicant);
(h)When notice was given on 16 May 2017 that the children were not in the care of the Applicant, the payments were cancelled immediately.
[3] Part 5.56 of Respondent’s Statement of Facts, Issues and Contentions.
The Respondent noted in its written submissions that, while there is no definition of “attributable solely to an administrative error” or “administrative error” in the legislation, the Full Federal Court in Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190 (per Selway J at [35]) stated that:
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 further noted that in Ward and Secretary, Department of Families and Community Services [2000] AATA 212, the AAT held (at [47]) that:
This means that the Secretary’s duty to waive does not extend to those debts which are attributable to errors or other factors which are independent of the Commonwealth’s administrative error. It makes no difference that those other errors or factors are minor.
The Tribunal finds on the evidence before it that the family tax benefit, schoolkids bonus and grandparent child care benefit payments made in the period under review were due to contact with Centrelink on 7 October 2015 and 17 November 2015, in which the person contacting Centrelink (who Centrelink has recorded in both records of contact as having been the Applicant) represented that the four children were in the care of the Applicant. The Tribunal finds that incorrect representations were made to Centrelink that the four children were in the care of the Applicant for the purposes of family assistance payments and for the purposes of child care benefit in respect of the child care providers the children were attending. Regardless of who made the incorrect representations, the representations themselves mean that the debts are not due to sole administrative error on the part of Centrelink. In consequence, none of the debts can be waived under section 97 of the Family Assistance Administration Act.

Waiver – Special circumstances

Section 101 of the Family Assistance Administration Act allows that a debt may be waived where:
(a)   the debt did not result wholly or partly from the debtor or another person knowingly:
(i)  making a false statement or a false representation; or
(ii)  failing or omitting to comply with a provision of the family assistance law; and
(b)   there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c)   it is more appropriate to waive than to write off the debt or part of the debt.
The Applicant’s evidence at the Tribunal hearing was that she wasn’t aware of what was happening at all, she does not speak English and was therefore unable to speak to Centrelink, and that her stepdaughter is “lying all the time”. The Applicant confirmed in her evidence at the hearing that she was residing at the same address her correspondence was being sent to and had lived there since 2003. She told the Tribunal that her stepdaughter had lived with them for an eight-month period in probably 2015, when her stepdaughter separated from her husband. She gave unclear evidence at the hearing about when her stepdaughter was dealing with Centrelink correspondence on her behalf.
As noted above, the family tax benefit (and associated schoolkids bonus) payments were made due to the submission of an online claim on 7 October 2015. The Applicant did not dispute that the online claim was made, but gave evidence that she had not had access to the internet. The grandparent child care benefit payments were made as a result of contact made with Centrelink on 17 November 2015. The record of this contact reflects the Applicant contacted by phone on 17 November 2015 regarding “change in care details for CCB for Approved Care” in respect of all four children and that Centrelink was advised that all children had started with the relevant provider on 28 September 2025. When this record was put to the Applicant at the hearing, she stated in response that she hadn’t called.
Also, as noted above, letters were sent to the Applicant during the period under review. These included letters dated 16 November 2015 about the Applicant’s family tax benefit payments from 28 September 2015 onwards; 17 November 2015 about the Applicant’s child care benefit; 18 November 2016 about the Applicant’s child care benefit, reflecting that she was the primary carer of her grandchildren; 22 June 2016 about the Applicant’s family tax benefit rate and referring to the four grandchildren; 24 August 2016 about child care benefit; and 30 August 2016 about child care benefit.
At the Tribunal hearing, the Applicant denied having received or been aware of any of the letters sent to her by Centrelink. The Applicant was asked during the hearing about what she did when she received mail in the post. She stated that she would put it on the table and had friends that would come to her house. She had four or five friends who would come to her house every other day, prior to her husband’s passing, and if she received a letter she didn’t understand, she would ask them to read her mail. Later in her evidence, the Applicant denied ever having had a letter explained to her about receiving money from Centrelink for her grandchildren. When asked to explain comments in her statement that her stepdaughter had access to her mail and read and explained it as she saw fit, and when asked what her stepdaughter would tell her about the mail, the Applicant stated in response, “no, don’t recall”. As to the statement itself, that had been prepared in March 2022, the Applicant confirmed that it contained information she had provided to another stepdaughter. When asked about the comment in the statement that the stepdaughter had explained what she wanted, the Applicant stated, “no”. When asked why not, the Applicant stated she doesn’t know. When asked whether the statement was incorrect, the Applicant stated that her stepdaughter didn’t explain anything. The Tribunal noted that this differed from the Applicant’s evidence at the AAT first review hearing which was that, after being read the statement, she “confirmed the statement was correct”.[4]
[4] AAT first review Reasons for Decision at paragraph 11.
The Applicant clarified in her evidence that she had come to understand Centrelink had raised a debt. As to how she had learned this, she stated the neighbours had told her. When asked whether that had been the only occasion the neighbours had read something to her about her payments, the Applicant responded “yes”. The Applicant gave evidence at the hearing that she did not recognise the branding on a Centrelink letter. She also claimed in her evidence at the hearing that she does not recall receiving any text messages from Centrelink (advising her of online letters that had been sent).
The Tribunal has, further, noted above that the family tax benefit and schoolkids bonus payments were made into the Applicant’s joint bank account. The Applicant gave conflicting evidence during the hearing about accessing the bank account during the debt period, initially telling the Tribunal that she had been receiving $150 to $200 per fortnight for caring for her husband and that she would go to the bank with her husband regularly and withdraw money to go shopping. She told the Tribunal that both she and her husband were responsible for paying for their household expenses and that she knew they had a joint account in both their names. When asked later in the hearing about the statement she had provided Centrelink, which stated that she was not aware of the payments being made to her account and that her stepdaughter had gone to the bank on all occasions, the Applicant stated she “didn’t know she would do it” and that she had not once gone with her stepdaughter. When asked about the withdrawal slips reflecting her husband as having signed to withdraw the family assistance amounts being paid to her, the Applicant stated that was not correct. The Applicant, later in her evidence, stated that her stepdaughter had forged her husband’s signature. When it was observed that the bank would have known that her stepdaughter was not her husband, the Applicant stated in response, “I wouldn’t know”. The Tribunal noted submissions made by the Respondent that withdrawals from the bank account in question increased from fortnightly to weekly between November 2015 and May 2017; that 87 withdrawals were made by the Applicant’s husband, amounting to $108,103.70 withdrawn; and that the Applicant’s husband personally undertook at least 76 withdrawals during this period (based on signature representations on the withdrawal slips contained in the papers).

The Tribunal noted that a claim for carer allowance was made in the Applicant’s name in respect of care being provided to two of her grandchildren. When asked at the hearing about a claim for carer allowance made in her name in June 2016, the Applicant gave evidence that she wasn’t aware of that and “never claimed anything”. When taken to the signature in her name on the claim form, the Applicant stated that it was not her signature and that she doesn’t know how to write. When asked about the record of her attending in person for an interview in June 2016 about the carer allowance claim, the Applicant stated she doesn’t recall.
The Applicant was asked, during the hearing, about other records of her contacting or attending Centrelink. These included a phone call in February 2016 about family tax benefit, to which she stated she wasn’t aware of that. In response to a record dated 16 May 2017 reflecting the Applicant as advising that the grandchildren were no longer in her care, she stated she didn’t tell anybody anything and that she was in Lebanon in 2017. After clarifying that she was in Lebanon in “maybe July” and that the contact had occurred in May 2017, she stated “it wasn’t me”. During the hearing, the Applicant denied having contacted Centrelink on any occasion in relation to care for her grandchildren. She was unable to explain why some of the records of contact reflected her as having contacted Centrelink and other records reflected her stepdaughter as having made contact.
As to her circumstances, the Applicant told the Tribunal that she can’t afford to make payments towards the debts and she has lots of bills. She stated she lives on her own and has no one to help her now that her husband is deceased. She has lots of health issues including migraines, problems with her knees, diabetes and high blood pressure. Medical documentation contained in the papers before the Tribunal date back to 2007 and indicate the Applicant has attended her doctor in relation to diabetes, obesity, high blood sugar, kidney function, high cholesterol, high blood pressure and for referrals to a podiatrist. The Tribunal accepted the Applicant was diagnosed with Type 2 diabetes in 2005 and that she attended a colorectal clinic as an outpatient in 2012. Other medical documents indicate the Applicant’s husband had been diagnosed with a range of medical issues, described in the medical documentation as chronic multiple illness with osteoarthritis, limited mobility and being prone to falls. The Tribunal also had before it information about the needs of the Applicant’s grandchildren; the Tribunal placed no weight on these documents on the basis that the grandchildren were not in the Applicant’s care during the relevant period and these matters therefore had limited impact on the Applicant’s own circumstances.
The Respondent submits that the debts are unable to be waived under this provision because it would be open to the Tribunal to find that the debts resulted from the Applicant or another person knowingly making a false statement or false representation, or failing or omitting to comply with a provision of the family assistance law. The Respondent noted in written submissions provided to the Tribunal that, while there is no definition of “knowingly” in the legislation, it has been considered in a number of Tribunal decisions. In Re Callaghan and Secretary, Department of Social Security [1996] AATA 413, (1996) 45 ALD 435 (at [48]) the AAT stated (in respect of the equivalent waiver provision that applies to social security debts) that:
There is nothing in section 1237AAD which suggests that the word “knowingly” should be given any meaning other than that a person has actual knowledge, rather than constructive knowledge, that he or she is making a false statement or representation or that he or she is failing or omitting to comply with a provision of the Act. That actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement or the act or omission.
Further, in Cox and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 350, the AAT stated that:
Whilst it is clear from this passage that actual (as compared to) constructive knowledge is required, the Tribunal has recognised that the presence of actual knowledge may be inferred from the circumstances where a debtor had the opportunity to gain that knowledge, and there were no obstacles preventing him acquiring that knowledge: see also Anderson and Department of Family and Community Services [2002] AATA 239; (2002) 68 ALD 494, Secretary, Department of Family and Community Services and Temesgen [2002] AATA 1290; (2002) 72 ALD 563 at 564-565 and Balancio and Secretary, Department of Family and Community Services [2003] AATA 466; (2003) 74 ALD 204 at 209.
The Tribunal accepted that the Applicant’s stepdaughter became her nominee for Centrelink purposes from 5 August 2015, and that both the Applicant and her stepdaughter were sent correspondence from Centrelink after that time. The Applicant’s position at the hearing was that the various payments had been sought by her stepdaughter, that the payments were accessed by her stepdaughter and that she had no awareness of the payments being made in her name. The Tribunal had great difficulty in accepting the Applicant’s position, on the basis that it would require the Tribunal to accept that:
·   The Applicant was not aware of any letters sent to her about her family tax benefit and grandparent child care benefit arrangements, despite her evidence that four to five friends would attend her house every other day and would read her mail to her;
·   The Applicant did not receive and/or read any text messages sent to her advising that letters had been uploaded online;
·   The Applicant was aware of the amount being received each fortnight for caring for her husband, but was not aware of the additional payments being made, despite attending with her husband to withdraw money from their joint bank account, and despite her husband accessing the additional money that was being paid. It would require the Tribunal to accept that there had been no discussion between the Applicant and her husband about an amount totalling $108,000 withdrawn during the period under review, in contrast to the Applicant’s expectation of receiving $150 to $200 per fortnight over that period. In the alternate, it would require the Tribunal to accept that the Applicant’s stepdaughter forged the Applicant’s husband’s signature and that the bank allowed a female posing as the Applicant’s husband to withdraw these amounts;
·   Records reflecting the Applicant as phoning Centrelink and attending Centrelink in person all incorrectly reflect contact with the Applicant rather than her stepdaughter on her behalf.
However, regardless of the Tribunal’s concerns about the Applicant’s evidence, as set out above, the Tribunal is satisfied on the evidence before it that the debts have arisen due to the Applicant and/or her stepdaughter making false representations to Centrelink that the four children were in the Applicant’s care, in circumstances where the person making the representation knew that not to be true. The Tribunal finds that the discretion set out in section 101 of the Family Assistance Administration Act is unable to be enlivened, on the basis that the debts have resulted from the debtor or another person knowingly making a false statement or a false representation. The debts are unable to be waived under section 101 of the Family Assistance Administration Act.
There are no other provisions in the Family Assistance Administration Act that apply in the circumstances of this case, that would allow recovery of the debt to be waived or paused. The Tribunal therefore concludes that there are family tax benefit, schoolkids bonus and grandparent child care benefit debts owing to the Commonwealth that must be recovered from the Applicant. For this reason, the decision under review is affirmed.

DECISION

The Tribunal affirms the decisions under review.

Date of hearing: 23 June 2025

Representative for the Applicant: Ms S Hafda

Solicitors for the Respondent: Ms T Weir, HWL Ebsworth Lawyers

[2025] ARTA 1046

7 July 2025

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Social Security Obligations

Misrepresentation

Unconscionable Conduct

Date of hearing:	23 June 2025
Representative for the Applicant:	Ms S Hafda
Solicitors for the Respondent:	Ms T Weir, HWL Ebsworth Lawyers