QCTB and Secretary, Department of Social Services (Social security second review)
[2025] ARTA 712
•27 May 2025
QCTB and Secretary, Department of Social Services (Social security second review) [2025] ARTA 712 (27 May 2025)
Applicant/s: QCTB
Respondent: Secretary, Department of Social Services
Tribunal Number: 2023/8946
Tribunal:Senior Member J Longo (second review)
Place:Melbourne
Date:27 May 2025
Decision:The Tribunal affirms the decision under review.
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Senior Member J Longo
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 201(1A)–201(1B) of the Social Security (Administration) Act 1999.
Catchwords
SOCIAL SECURITY – parenting payment – whether applicant overpaid parenting payment – whether overpayments calculated correctly - whether overpayments are a debt due to the Commonwealth – whether debts should be waived – consideration of special circumstances – decision under review affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secretary, Department of Social Security v Hales [1998] FCA 210
Dranichnikov v Centrelink [2003] FCAFC 133
Ward and Secretary, Department of Family and Community Services [2000] AATA 212
Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435
McLean and Secretary, Department of Family and Community Services [2003] AATA 321
Salangsang and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 55
Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25Gammaldi and Secretary, Department of Social Services (Social services second review) [2016] AATA 1028
Secondary Materials
Social Security Guide
The Guide to Australian Government Payments
Statement of Reasons
BACKGROUND
This application is about whether the Applicant was overpaid parenting payment and coronavirus supplement and whether the debt should be recovered.
The Applicant has been paid parenting payment since 18 April 2017. From 6 May 2020, the Applicant was paid coronavirus supplement.
Services Australia – Centrelink (‘the Agency’), in administering the payment of parenting payment and coronavirus supplement on behalf of the Respondent, on 26 July 2022 decided to raise and recover parenting payment and coronavirus supplement debts from the Applicant as follows:
(a)A parenting payment debt of $33,291.48 for the period from 3 August 2018 to 25 August 2021; and
(b)A coronavirus supplement debt of $9,250.00 for the period 6 May 2020 to 29 March 2021.
The debts were raised on the basis that the Applicant’s and her partner’s income from self-employment was not taken into account in calculating the rate of parenting payment and coronavirus supplement, meaning the Applicant received more parenting payment and coronavirus supplement than she was entitled to receive.
On 29 July 2022, the Agency decided to waive $9,821.75 of the parenting payment debt for the period 3 August 2018 to 15 December 2019. The parenting payment debt of $23,469.73 for the period 16 December 2019 to 25 August 2021 and the coronavirus supplement debt of $9,250.00 Ifor the period 6 May 2020 to 29 March 2021 remained recoverable by the Agency.
Following requests for review of the decision by the Applicant, a Centrelink Authorised Review Officer (on 10 October 2022) and the Social Security and Child Support Division of the Administrative Appeals Tribunal (‘the AAT’) on first review (on 26 October 2023) affirmed the decision.
On 23 November 2023, the Applicant applied to the AAT seeking a second review of the Agency’s decision. 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.
For the reasons that follow, the decision under review is affirmed.
ISSUES
The issues which arise in this case are:
· Does the Applicant have parenting payment and coronavirus supplement debts to the Commonwealth? And, if so,
· Are there grounds for write off or waiver of recovery of all or part of the debts?
CONSIDERATION
LEGISLATIVE AND LEGAL FRAMEWORK
The statutory provisions relevant to this application are found within the social security law, in particular the Act and the Social Security (Administration) Act 1999 (‘the Administration Act’).
It is proper for the Tribunal to also have regard to the contents of the Social Security Guide (‘the Guide’).[1] Any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task.
[1] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
An individual’s parenting payment entitlement is calculated pursuant to the rate calculator in section 1068B of the Act. Section 500I of the Act provides that parenting payment is not payable if the payment rate is nil.
Subsection 504(1) of the Act stated that if a person was receiving parenting payment, the rate of the parenting payment was increased by the amount of the coronavirus supplement, from 27 April 2020. Subsection 504(4) of the Act specified that the rate of the coronavirus supplement was $550.00 per fortnight.
Subsection 1068B(1) of the Act provides that if a person is a member of a couple, then the rate of parenting payment is paid at the partnered rate. Section 1068B-A2 provides a method statement to calculate the rate of parenting payment using Module D to work out the recipient’s income and their partner’s income.
Section 8 of the Act contains the definitions of ‘income’, ‘income amount’ and ‘ordinary income’. Section 8 of the Act states that ordinary income is all income that is not maintenance income and is not an exempt lump sum. Subsection 8(2) of the Act states as follows:
Earned, derived or received
(2) A reference in this Act to an income amount earned, derived or received is a reference to:
(a) an income amount earned, derived or received by any means; and
(b) an income amount earned, derived or received from any source (whether within or outside Australia).
In relation to business income, subsection 1075(1) of the Act states as follows:
Permissible reductions of business income
(1) Subject to subsection (2), if a person carries on a business, the person's ordinary income from the business is to be reduced by:
(a) losses and outgoings that relate to the business and are allowable deductions for the purposes of section 8 - 1 of the Income Tax Assessment Act 1997; and
(b) amounts that relate to the business and can be deducted in respect of plant (within the meaning of the Income Tax Assessment Act 1997) under Division 40 of that Act; and
(c) amounts that relate to the business and are allowable deductions under section 290 - 60 of the Income Tax Assessment Act 1997.
Chapter 4.7.1.20 of the Guide states:
Assessment of business income
Income from a sole trader or partnership business is the net amount:
·AFTER allowable expenses for the cost of running the business, AND
·BEFORE income tax and other personal deductions.
For assessment purposes the current annual rate of income is used, generally based on the most recent income tax return. To calculate the effect of income on fortnightly payments, the annual rate should be divided into 26 equal instalments and then treated as ordinary income in each fortnight.
The income limits in relation to the rate of parenting payment are indexed from 1 July on an annual basis. Information as to the income limits can be obtained in ‘The Guide to Australian Government Payments’ (‘Guide to Payments’).
The Respondent submitted that, from 16 December 2019, in order for the Applicant to be entitled to receive the maximum rate of parenting payment, in accordance with Module D under section 1068B of the Act, the Applicant’s income must be no more than $104.00 per fortnight and the partner’s income must be no more than $984.00 per fortnight. If the Applicant’s income is higher than $104.00 per fortnight, the rate of parenting payment reduces by 50 cents for each dollar between $104.00 and $254.00, and by 60 cents for each dollar above $254.00 per fortnight before reaching an income cut off amount of $983.34 per fortnight. In respect of the Applicant’s partner, partner income of up to $984.00 per fortnight has no effect on the rate of parenting payment. Partner income over $984.00 per fortnight reduces the rate by 60 cents for each extra dollar before reaching an income cut off limit of $1,838.33 per fortnight. The couple’s combined income must be less than $1,967.34 per fortnight. The Respondent further submitted that the income thresholds changed throughout the debt period as detailed in the Guide to Payments.
Subsection 1223(1) of the Act states that if a social security payment is made and the person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit, the amount of the payment is a debt to the Commonwealth.
Issue 1: Does the Applicant have parenting payment and coronavirus supplement debts to the Commonwealth?
The Applicant stated at hearing that she and her husband operate a partnership, supplying and installing window furnishings. It was submitted by the Respondent that the Applicant submitted partnership tax returns for the business for the 2018-19 financial year on 16 December 2019 and for the 2019-20 financial year on 14 June 2021.[2]
[2] Paragraph 5.7 of the Respondent’s SFIC dated 20 March 2025.
The partnership return for 2018-19[3] shows a total business income of $262,964.00 and expenses of $176,476.00, resulting in a net income of $86,388.00. The resultant profit from the partnership was distributed equally to the Applicant and her husband ($43,194.00 each). The partnership return for 2019-20[4] shows a total business income of $262,519.00 and expenses of $200,452.00, resulting in a net income of $62,067.00. The resultant profit from the partnership was distributed equally to the Applicant and her husband ($31,033.00 each). The Applicant did not dispute the income distributed to her and her husband from the partnership.
[3] [T17] page 217 to 222.
[4] [T17] page 223 to 228.
Consistent with the above information, the Respondent submitted in their Statement of Facts, Issues & Contentions (‘SFIC’) that the Applicant’s and her husband’s income from the partnership for the relevant income years were as follows:[5]
[5] Paragraph 5.3 of the Respondent’s SFIC dated 20 March 2025.
Financial year
Applicant’s Income
Partner’s Income
2017-18
$20,993
$8,171
2018-19
$43,194
$43,194
2019-20
$31,033
$31,034
The Respondent further submitted that based on the Applicant’s and her husband’s income:
(a)The Applicant was not entitled to parenting payment for the period 16 December 2019 to 25 August 2021;
(b)The Applicant received $23,469.73 for the period 16 December 2019 to 25 August 2021 in excess of her actual entitlement;
(c)The Applicant was not entitled to the coronavirus supplement; and
(d)The Applicant received $9,250.00 of coronavirus supplement for the period 6 May 2020 to 29 March 2021 in excess of her actual entitlement.
Based upon the evidence, including the income in the partnership returns for 2018-19 and 2019-20, I am satisfied that the Applicant and her husband had income from the partnership of $86,388.00 for the 2018-19 financial year, and each received a distribution of $43,194.00 for this financial year. I am also satisfied that the Applicant and her husband had income from the partnership of $62,067.00 for the 2019-20 financial year, and each received a distribution of $31,033.00 for this financial year.
I find that the Applicant’s income and her husband’s income was above the income limit for the payment of parenting payment from 16 December 2019 as the combined income of the Applicant and her partner was more than $1,967.34 per fortnight. Therefore, the Applicant was not entitled to receive parenting payment from 16 December 2019 to 25 August 2021. As the Applicant had no entitlement to parenting payment, the coronavirus supplement was also not payable.
I have had the benefit of the debt calculations as provided by the Agency in this application, which were not disputed by the Applicant.[6] Accordingly, the Applicant has a debt of parenting payment of $23,469.73 for the period from 16 December 2019 to 25 August 2021 and a debt of coronavirus supplement of $9,250.00 for the period 6 May 2020 to 29 March 2021 pursuant to subsection 1223(1) of the Act. I note that section 1229A of the Act allows for interest to be charged on debts where there is no arrangement in effect for the repayment of the debt.
Issue 2 – Are there grounds for write off or waiver of recovery of all or part of the debts?
[6] [T21].
Having determined that there are debts, I have considered whether the debts should be recovered. Part 5.4 of the Act deals with non-recovery of debts. Usually, a debt must be repaid unless the law provides otherwise. As referred to by the Respondent in their SFIC, French J recognised this general premise in Secretary, Department of Social Security v Hales [1998] FCA 210 (‘Hales’) where it was stated as follows:
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. This case primarily concerns the proper construction of a section of the Social Security Act 1991 (Cth) which provides for the waiver of debts where special circumstances are found to exist. There is a tension in the construction of such provisions between the needs for certainty of application and flexibility of response to the situations that may arise from time to time.
Section 1236 deals with the write off of a debt, subsection 1237A(1) allows for waiver of a debt which is caused solely by administrative error and section 1237AAD allow debts to be waived due to special circumstances.
Write off
Write off temporarily suspends recovery. Pursuant to section 1236 of the Act, recovery of a debt can be written off only if certain strict conditions are met, such as the person’s whereabouts are unknown, or they have no capacity to repay the debt. I find that section 1236 of the Act does not apply to the Applicant’s circumstances as none of the requirements which would allow for write off of the debt apply.
Sole administrative error waiver
Subsection 1237A(1) of the Act provides as follows:
(1) Subject 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).
The Commonwealth’s right to recover a debt must be waived if the debt is attributable solely to an administrative error. In considering whether the debts were attributable to sole administrative error, I note that the Full Federal Court in Dranichnikov v Centrelink [2003] FCAFC 133 (‘Dranichnikov’) discussed the meaning of administrative error as follows:
It is neither possible nor appropriate to attempt a meaning of the words “administrative error” which would accurately cover every case for much will turn upon the circumstances. Essentially, however, the concept is one where the error or mistake arises as a result of the procedure that has been adopted. An obvious example would be payment of a benefit where the decimal point was wrongly located. An error made by Centrelink or the Australian Taxation Office acting on its behalf in its administration of the law will generally be an administrative error. On the other hand, a decision made, for example, on a question of legal entitlement to a benefit while no doubt made in the course of administration of the law would not be an administrative error.
In the Administrative Appeals Tribunal decision of Ward and Secretary, Department of Family and Community Services [2000] AATA 212, Deputy President Forgie held that the word ‘solely’ meant ‘exclusively’, ‘only’ or ‘to the exclusion of all else’. Specifically, at paragraph 47 of the decision, Forgie DP stated:
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 Respondent contended that there was no sole administrative error on the part of the Commonwealth, noting that:
(a) The Applicant was issued notices under subsection 68(2) of the Administration Act requiring her to report changes in income, including if her fortnightly income was over $104.00 or her husband’s fortnightly income was over $949.00;
(b) The Applicant was explicitly advised during a call on 28 November 2019[7] to lodge with the Agency the business partnership return and profit and loss statements for the 2018-19 financial year once they were provided to the ATO;
(c) There is no evidence that the Applicant provided income details, the partnership tax return, or profit and loss statements for the purpose of a parenting payment prior to 17 August 2021;
(d) The Applicant did not provide the partnership income to the Agency, despite the partnership tax return for 2018-19 being lodged with the ATO on 16 December 2019 and the partnership tax return for 2019-20 being lodged with the ATO on 14 June 2021.
[7] [S4] pages 82 to 83.
The Applicant contends that the Agency erred in delaying the application of her income information in 2018. The Applicant submitted that if this income had been applied to her parenting payment at the time, her payments would have stopped in 2018. The Applicant also submitted that she provided information to the ATO, including tax returns, BAS statements and profit and loss statements, and that the data sharing between government agencies should have picked up her income and the incorrect payments. The Applicant further submitted that profit and loss statements were not requested by the Agency until July 2021.
The Respondent does not dispute that the Agency failed to take into account the Applicant’s and her husband’s partnership income for the 2017-18 financial year when provided on 26 July 2018. The debt from 3 August 2018 to 15 December 2019 was waived by a delegate of the Agency. However, the Respondent submitted that the Applicant was obliged to provide the income information from the partnership for the 2018-19 financial year once available from 16 December 2019, as per the information received in the telephone call with a delegate of the Agency on 28 November 2019, and in accordance with the notice issued on 2 July 2021.[8] Furthermore, the Respondent contends that the Applicant was sent family tax benefit notices, such as the letter sent on 22 November 2019,[9] with instructions that the Applicant must update income separately for income support payments, and it is therefore not an administrative error if the Agency did not use the Applicant’s estimated adjusted taxable income for family tax benefit purposes to calculate the Applicant’s parenting payment entitlement.
[8] [T20] pages 352 to 355.
[9][T20] page 310.
The debts were raised on 22 July 2022, almost one year after the parenting payment and coronavirus supplement were cancelled. I acknowledge and accept the Applicant’s submission that the raising of the debt could have been undertaken at an earlier date. I find that there has been administrative error on the part of the Respondent in not taking action when income information was provided on 26 July 2018. However, this error did not displace the Applicant’s obligation to provide income information in relation to the 2018-19 and 2019-20 financial years for the partnership.
In relation to the debt, I am satisfied that the debt did not arise as a consequence of sole administrative error. Rather, the debt arose due to the fact that the Applicant’s and her husband’s income from the partnership from 16 December 2019 was not taken into account correctly, due to this information not being provided to the Agency until 17 August 2021.
I have found that there was no administrative error on the part of the Respondent, either because of delay in raising the debts nor based upon the wording of its letters. It follows that wavier cannot occur pursuant to subsection 1237A(1) of the Act.
As I have found that there was no error by the Respondent, I have not considered whether the overpaid amounts were received in good faith by the Applicant.
Special circumstances waiver
Of further potential relevance, section 1237AAD of the Act provides for waiver of recovery of all or part of a debt as follows:
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.
I have considered the circumstances of the Applicant’s reporting of her income. I have considered the Respondent’s submissions in this regard, and the case authorities referred to in relation to the issue.
I am satisfied that the Applicant genuinely understood that the income for family tax benefit purposes would be used to calculate her parenting payment entitlement. I note the submissions on behalf of the Respondent regarding the telephone conversation on 28 November 2019, where the Applicant was advised to provide the 2018-19 partnership income once lodged with the ATO to assess her parenting payment.
I accept the Applicant’s evidence at hearing that she could not recall this particular information being provided to her during the conversation, but that she accepts based on the transcript of the conversation that she was told to provide this information to the Epping office. The Applicant stated that she could not recall this conversation because it occurred approximately three weeks after giving birth by C-section and that as a consequence of the birth and the procedure, she was sleep deprived and medicated. I accept that the Applicant’s circumstances may have impacted on her recollection of the conversation on 28 November 2019.
In Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435 the AAT commented:
48. There is nothing in s1237AAD 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. The 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...
Based on the evidence of the Applicant, I find that the debts did not result wholly or partly from the Applicant or any other person knowingly making a false statement or false representation or knowingly failing or omitting to comply with one of the Acts.
As regards “special circumstances”, the term is not defined in the legislation. The term “special circumstances” is not defined in the Act. The Federal Court and the Administrative Appeals Tribunal have considered the issue of special circumstances on a number of occasions. In every case, the individual circumstances of the case were examined to determine whether they were such that it would be unjust, unreasonable or inappropriate for the debt to be recovered. The Federal Court in Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25 emphasised that it is not the intention of Parliament that the exercise of this discretion be confined to the “exceptional” case, but rather that there is something that distinguishes the case from the ordinary or usual case. The Full Federal Court in Dranichnikov determined that whether there are special circumstances in a particular case depends on whether there are circumstances that would distinguish the case from the usual. Further, for special circumstances to exist, there must generally be some factors, apart from financial hardship alone, which distinguish the case and set it apart from other similar cases.
The Applicant submitted that there are a number of matters that should be taken into account and accepted as constituting special circumstances in her case that make it appropriate to waive the debts. The Applicant has stated that this debt has caused considerable anxiety and has affected her mental health.
In regard to the debt, the recovery is currently paused, and no repayment arrangements are in place. The Applicant’s financial circumstances are that they own their home, with a mortgage, and also an investment property. There is a mortgage over the investment property and the property has been, according to the Applicant’s income tax returns, producing a loss. The Applicant and her husband are still operating the partnership. She has estimated the income for her and her husband for the 2024-25 financial year at approximately $200,000.00. Her husband has back issues but self-manages his condition.
The Applicant gave evidence that they have three children, a 10-year-old, an 8-year-old and a 3-year-old. She stated that one of the children, who is now 10 years old, has level two autism. He is currently in primary school. He has behavioural issues and receives occupational and speech therapy through the NDIS and has been referred to a psychologist. Her youngest child may need speech therapy but there has been no formal assessment.
The Applicant stated that in relation to her own health, she has been diagnosed with supraventricular tachycardia (‘SVT’) which can cause blurred vision, light headedness and panic attacks. It also causes an elevated heart rate that if she is unable to manage, requires medical intervention. Her last episode where she required hospitalisation was in 2024. She is also suffering from vertigo, which can cause nausea and vomiting. She is taking medication to help with these symptoms.
Summary of the Respondent’s submissions in relation to special circumstances
The Respondent’s written and oral submissions as to why there are not special circumstances in the Applicant’s case that make it appropriate to waive the debts included as follows:
(a) The Respondent submitted that while the Applicant’s circumstances are difficult, they are not sufficiently unusual, uncommon or exceptional so as to make her case different from the usual or ordinary run of cases and otherwise ‘special’.
(b) The Applicant and her husband are employed. Further and in addition, given the Applicant’s property estimated income and rental income, the Applicant’s finances are in a better position as compared to other income support recipients to repay the debt and are not beyond straitened.
(c) Whilst the Applicant has provided evidence of her and her family’s medical conditions, ill health, even considerable injury and pain, it is not in and of itself unusual.
(d) The delay in raising the debt can be distinguished from those cases where delay was a relevant factor for establishing special circumstances for the following reasons:
(i)The delay of 11 months was significantly shorter than the delay of 6 and 8 years in McLean and Secretary, Department of Family and Community Services [2003] AATA 321 (‘McLean’) and Salangsang and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 55 respectively.
(ii)The delay did not adversely impact the quantum of the debt as the parenting payment was promptly cancelled.
(iii)The Agency’s delay was as a result of the Commonwealth Government attempting to assist the community amid the COVID-19 pandemic by not raising and recovering debts during those challenging circumstances.
(e) Even if the requirements of section 1237AAD of the Act are satisfied, waiver is not automatic and it still may not be appropriate to exercise the discretion given that the debt was as a result of the Applicant’s failure to advise the Agency of the partnership income and therefore it would not be appropriate to exercise the discretion in this instance.
(f) The Applicant has had the benefit of the parenting payment and coronavirus supplement and there is no injustice or unfairness in requiring the Applicant to repay these debts.
Conclusion – Special circumstances
I accept as found in Hales when discussing special circumstances wavier, that financial hardship is not mandatory for the special circumstances waiver to have application. French J noted as follows in that regard:
The concept of special circumstances is broad. A constellation of factors, including financial circumstances, may fall within it. The express exclusion of financial hardship alone as a special circumstance is an indicator that it would otherwise be included. This gives some measure of the range of circumstances which will qualify as special. But as a matter of grammar and ordinary logic, the exclusion of financial hardship alone as a special circumstance does not mandate its inclusion in the range of matters constituting such circumstances for the purpose of enlivening the Secretary’s discretion.
On this point and as a matter of construing this section by reference to the ordinary meaning of its words, the Secretary’s submission that there cannot be special circumstances for the purpose of s 1237AAD(b) unless there is also financial hardship is not accepted. The Explanatory Memorandum does not undercut this conclusion. There it is said that the new special circumstances provision can only be used where the debt arose because of an innocent mistake by a social security recipient. Secondly, it is said that financial hardship of itself is not a sufficient reason to waive the debt. This is in substance a restatement of the ordinary meaning of the provision.
The evident purpose of s 1237AAD is to enable a flexible response to the wide range of situations which could give rise to hardship or unfairness in the event of a rigid application of a requirement for recovery of debt. It is inappropriate to constrain that flexibility by imposing a narrow or artificial construction upon the words. It may be that there will be few cases in which the Secretary will be satisfied that there are special circumstances in the absence of financial hardship. It may be that there are few cases in which having found special circumstances to exist, the Secretary would exercise the discretion to waive in the absence of financial hardship. But to anticipate the limits of the categories of possible cases by imposing on the language of the section a fetter upon its application which is not mandated by its words, is to erode its useful purpose.
Whilst not mandating financial hardship, French J recognised that it may be there will be few cases in which there are special circumstances (making it appropriate to waive) in the absence of financial hardship. I had regard to all of the circumstances in the Applicant’s case both individually and cumulatively when considering whether there are special circumstances, other than financial hardship alone, that make it appropriate to waive the debts or part thereof.
I accept all of the matters raised by the Applicant relating to her medical conditions and those of the children and her husband. I am satisfied that the Applicant and her husband are both still working in the partnership.
In respect of the delay, I have considered the decision in McLean where a delay of six years by the Agency in raising a debt was found to be a special circumstance. The delay in the present matter was considerably shorter and there has been no effect on the Applicant’s ability to access information. The delay has also not adversely impacted the debt as the Applicant’s payments were cancelled before the debt was raised.
I accept the Respondent’s submissions that the Applicant’s and her family’s medical circumstances have placed some difficulty on the family, but they are not sufficiently unusual, uncommon or exceptional so as to make her case different from the usual or ordinary run of cases. In Gammaldi and Secretary, Department of Social Services (Social services second review) [2016] AATA 1028 (‘Gammaldi’), the AAT found that even where the Applicant had had a difficult year, with family health issues, business challenges, and increased responsibilities, this did not constitute uncommon or unusual occurrences and were not “special circumstances”. The circumstances in this matter are analogous to those in Gammaldi.
I have taken all matters into account, both individually and cumulatively in relation to the Applicant’s circumstances. I am not satisfied that the Applicant’s circumstances considered individually or cumulatively make it unfair for the overpaid parenting payment and coronavirus supplement to be repaid nor that it would be unjust, unreasonable or inappropriate to recover the debts. The Applicant received in excess of her entitlement and I am not satisfied that there are special circumstances in the Applicant’s case that make it desirable to waive the debts or any part thereof.
It follows that section 1237AAD of the Act does not apply. There being no other relevant legislative provisions, I conclude that the debts must be recovered.
DECISION
The decision under review is affirmed.
Date of hearing: | 25 March 2025 |
Applicant: | QCTB (By Microsoft Teams) |
Representative for Respondent: | Ms Stefana Doslo from Services Australia (By Microsoft Teams) |
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