Ricardo Tabije and Secretary, Department of Social Services

[2014] AATA 778

[2014] AATA 778  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/0695
Re	Ricardo Tabije
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mark Hyman, Member
Date	24 October 2014
Place	Canberra

Mr Tabije’s carer payment was correctly cancelled. The debt he owes the Commonwealth has been correctly raised and calculated. The debt should not be written off or waived.

...........................[sgd].............................................
Mark Hyman, Member

Catchwords

SOCIAL SECURITY – pensions and benefits – carer payment – overpayment – cancellation of payment - debt – whether debt should be written off – whether debt should be waived – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975, s 37

Social Security (Administration) Act 1999, ss 66A, 68, 70, 80

Social Security Act 1991, ss 198, 198A, 198B, 198C, 198D, 199, 210, 992X, 1064, 1222A, 1223, 1236, 1237A, 1237AAD

Cases

Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25Re Gerhardt and Department of Employment, Education & Training [1996] AATA 173

Re Ward and Secretary, Department of Family and Community Services [2000] AATA 212

Rosser and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 47

Secretary, Department of Families, Community Services and Indigenous Affairs and George and Ors  [2007] AATA 1456

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Walsh [2008] AATA 75

Secretary, Department of Social Security v Hales (1998) 82 FCR 154

Sekhon v Secretary, Department of Family and Community Services (2003) 132 FCR 126

Secondary Material

A Guide to Australian Government Payments

REASONS FOR DECISION

Mark Hyman, Member

24 October 2014 

1. The applicant, Mr Ricardo Tabije, devotes a great deal of time to the care of his wife, Mrs Tita Tabije, who has had a kidney transplant and needs considerable support. He has organised his life so that he can be at home when she needs his help. Mr Tabije received carer payments from Centrelink over an extended period in recognition of his carer’s role. In May 2013 Centrelink cancelled Mr Tabije’s carer payment and raised a substantial debt for overpayment of benefit from 2010 to 2013. Mr Tabije sought review of the decision. An Authorised Review Officer (ARO) reviewed the decision and affirmed the cancellation but varied the amount of the debt. Mr Tabije sought review by the Social Security Appeals Tribunal (SSAT), which affirmed the ARO’s decision. Mr Tabije has now sought review by this Tribunal of the SSAT’s decision.

   Issues

2. The issues before me are

   a)Should Mr Tabije’s carer benefit be cancelled?

   b)If so, what is the amount of any debt owed the Commonwealth?

   c)Should some or all of that debt be written off or waived?

   The hearing

3. A hearing was held in Canberra on 1 September 2014. Mr Tabije appeared in person with his wife, Mrs Tita Tabije. The respondent was represented by Mr Tal Aviram, assisted by Ms Charlene Gerrard, both Centrelink advocates.

4. The documentary evidence comprised:

   a)the documents submitted by the respondent under s 37 of the Administrative Appeals Tribunal Act 1975 (the ‘T-documents’ and supplementary T-documents);

   b)submissions by the applicant which included statements relating to the facts of the matter, dated 10 February 2014 (Exhibit A1) and 7 April 2014 (A2) (Exhibit A1 also included a submission made to the SSAT dated 1 January 2014);

   c)Supporting material relating to the Tabijes’ domestic expenses and budget, submitted on 24 April 2014 (A3 and A4); and

   d)Copies of Centrelink records submitted by the respondent on 23 April 2014 under direction from the Tribunal, relating to the rejection of earlier applications for carer payment and carer allowance by Mr Tabije (R1).

5. Mr and Mrs Tabije each gave sworn evidence at the hearing.

6. Following the hearing Mr Tabije sought permission to submit additional evidence. The respondent did not object but suggested that the weight to be given the additional evidence should take account of its not having been tested in cross-examination. The evidence comprised additional financial material relating to the Tabijes’ domestic budget, medical records and tax-related material. Three bundles of material were submitted and have been assigned exhibit numbers, on 4 September (A5), 8 September (A6) and 21 September 2014 (A7).

7. Both applicant and respondent made written submissions before the hearing. Following the hearing the applicant made a further submission, dated 7 September 2014. The respondent, at my request, made two submissions following the hearing: one, provided on 12 September 2014, relating to the interaction between the provision of information to Centrelink for family tax benefit (FTB) purposes and for carer payment purposes, and one provided on 19 September 2014 relating to the operation of subsections 1223(1B) and (1C) of the Social Security Act 1991.

   The legislative context

8. The legislation applying to Mr Tabije’s circumstances is the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act). A New Tax System (Family Assistance) Act 1999 (the FA Act) is also relevant.

9. People who take on the care of others may qualify for various forms of assistance, including carer payment, carer supplement and carer allowance. Carer payment is the main form of assistance, and is provided under Part 2.5 of the Act. Carer allowance is an extra amount that is paid where the person receiving care is more severely disabled. It is paid under Part 2.19 of the Act. Carer supplement, an extra amount paid annually to people receiving carer payment, is provided for in Part 2.19B. Mr Tabije has applied for carer allowance on more than one occasion, as set out below, but his applications have been rejected, because his wife’s disability has not scored a sufficiently high rating. The provisions outlined are limited to those relating to carer payment and carer supplement, as they stood over the relevant period.

10. Qualification for carer payment where the carer is caring for a disabled adult is governed by s 198 of the Act. A person qualifies if the person is the only person caring for a disabled adult (the ‘care receiver’) who is assessed and rated under the Adult Disability Assessment Tool with a score of at least 25 on the basis of a total professional score of at least 10. Care must be provided in the home of the care receiver. The care receiver must pass an income and assets test.

11. The income test is set out in s 198A and the assets test in s 198D. Section 198A provides that a care receiver passes the income test if their taxable income is less than a specified income ceiling. Section 198B defines taxable income as the income assessed by the Commissioner of Taxation (or by other means not presently relevant) as taxable. For a care receiver who meets the assessment of disability described in the previous paragraph and who is a member of a couple, the taxable income of the care receiver includes the taxable income of the care receiver’s partner. Section 198D provides that a care receiver passes the assets test if the value of their assets is below a specified ceiling. The assets of the care receiver include those of the care receiver’s partner on the same basis as for the income test.

12. Section 210 provides that the rate of carer payment is determined using the calculator in s 1064. Section 199 states that a carer payment is not payable if the rate is nil.

13. Section 992X provides for payment of carer supplement. A person who receives carer payment for a period including 1 July of a year qualifies for carer supplement for that year.

14. Chapter 5 of the Act relates to overpayments, the creation of debts to the Commonwealth, and the recovery of those debts. Section 1223 deals with debts arising from lack of qualification, overpayments and the like. Subsection (1) states that if a social security benefit is paid but the person who obtained the benefit was not entitled to do so, the amount is a debt to the Commonwealth. Subsection (1AB) provides that a person is taken not to have been entitled to receive the benefit of a payment for subsection (1) if, relevantly, the payment was made by administrative or computer error, or the person was not qualified, or the payment was not payable.

15. Subsections (1B) and (1C) make specific provision for overpayment of carer payment:

    Some carer payment overpayments are not debts

    (1B)  If:

    (a)  an amount has been paid to a person (the carer ) by way of carer payment because the carer was providing care for a care receiver or care receivers (as defined in subsection 197(1)); and

    (b)  the amount was paid on the basis that the carer was qualified for carer payment when the carer was not qualified:

    (i)  because an estimate of the income of the care receiver or any of the care receivers was an underestimate; or

    (ii)  because an assessment or amended assessment of the income of the care receiver or any of the care receivers had been amended as described in paragraph 198B(2)(b), (c) or (d); or

    (iii) because of the occurrence, or the likelihood of the occurrence, of an event in respect of which the Department had not been informed in accordance with a requirement in a notice under section 70 of the Administration Act;

    the amount is not a debt due to the Commonwealth.

    Some carer payment overpayments are debts if carer knew about care receiver's affairs

    (1C)  Despite subsection (1B), an amount described in subsection (1B) is a debt due to the Commonwealth if it was reasonable for the carer to know that:

    (a)  the estimate of the income was incorrect; or

    (b)  the assessment or amended assessment had been amended; or

    (c)  the Department should have been informed in respect of the event in accordance with the requirement in the notice;

    as the case requires.

16. Part 5.3 of the Act allows the Commonwealth to recover debts due to it in a variety of ways. Part 5.4 provides for non-recovery of debts to the Commonwealth. Section 1236 makes provision for the Secretary to write off a debt in a number of enumerated circumstances, including, relevantly, where the debtor has no capacity to pay or where it would not be cost-effective for the Commonwealth to recover the debt. A debt that has been written off may subsequently be recovered.

17. Section 1237 gives a discretion to the Secretary to waive debts due to the Commonwealth under the sections that follow. A debt that is waived cannot subsequently be recovered. Of the provisions that follow, two are potentially relevant to the present matter: s 1237A provides that the Secretary must waive the proportion of a debt that is solely attributable to administrative error if the recipient received the payment in good faith and the debt was not raised within 6 weeks of its first arising; s 1237AAD provides:

    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.

18. The Administration Act includes general provisions relating to the administration of the social security system. Relevantly, Division 6, subdivision B contains provisions that impose obligations on people receiving benefits to inform the Department of changes in their circumstances where those changes might affect the payments they are receiving. Sections 66A, 68 and 70 impose such obligations at different levels of generality. Section 80 of the Administration Act allows the Secretary to cancel a payment where the recipient is not qualified or the benefit is not payable.

    The facts

19. The facts are not in dispute. The following is drawn from the T-documents. Mr Tabije first applied for carer payment and carer allowance in respect of Mrs Tabije in 2001 and again in 2002. Those applications were rejected. On 8 January 2010 Mr Tabije made a new application for carer payment and carer allowance, lodging an income and assets form with his application (T4). This form provided information about both Mr Tabije’s income and that of Mrs Tabije. Mrs Tabije signed the form on 6 January 2010. She provided fortnightly payslips to evidence her income (ST1). Some of those payslips related to fortnights when an advance of leave payment was being recovered, so that net income in those fortnights was nil.

20. On 22 January 2010 Centrelink sent a letter to Mr Tabije (ST2) advising that his carer payment had been granted from 29 December 2009; that his immediate payment was $94.64 for the period from 29 December 2009 to 12 January 2010; and that his regular fortnightly payment would be $217.03. This amount was said to be based on a combined annual income for Mr and Mrs Tabije of $532.86 and combined regular fortnightly earnings of $1,385.37. The letter included advice that it was a notice under social security law, and advised that a wide variety of changes in circumstance must be advised to Centrelink within 14 days of the change. Although the letter does not say so, it appears that Centrelink rejected Mr Tabije’s application for carer allowance.

21. On the same day, Centrelink sent Mr Tabije a letter (ST3) explaining how he was to report his employment income and other changes in circumstances.

22. Apparently Mr Tabije contacted Centrelink online on 25 January 2010 reporting Mrs Tabije’s fortnightly income as $1,620.47. This information does not seem to be supported by any independent evidence before me but is referred to in the decision of the ARO dated 30 August 2013 (T15).

23. On 23 February 2010 Centrelink wrote to Mr Tabije (ST4) advising that as he and/or his partner’s circumstances had changed, there was no longer a need for him to report every two weeks, but that he nevertheless had to advise of changes in circumstances affecting his payment within 14 days of their occurrence.

24. Mr Tabije continued to receive carer payment for more than three years. During this period Centrelink sent him letters from time to time, each including a statement that it was an information notice under social security law. These letters advised Mr Tabije that he must advise Centrelink of changes in his circumstances. The letters are of several types, but all in the list below except T18 include advice on the requirement to inform Centrelink of changes in income of the benefit recipient or partner: ST5 (18 May 2010), ST6 (10 August 2010), ST7 (4 October 2010), ST8 (2 November 2010), ST9 (22 February 2011), ST10 (8 April 2011), ST11 (17 May 2011), ST12 (9 August 2011), ST13 (1 November 2011), ST14 (4 November 2011), ST15 (2 December 2011), ST16 (24 January 2012), ST17 (17 April 2012), ST18 (29 October 2012) and ST19 (27 November 2012). The letters also include warnings that overpayments will result in debts that must be repaid.

25. Centrelink records assembled at T5 reveal occasional contact with Mr Tabije. On 28 June 2011 he contacted Centrelink regarding his and Mrs Tabije’s family tax benefit (FTB) entitlements. Mr Tabije was also at Centrelink on 21 December 2011 to provide updated information on Mrs Tabije’s continuing need for care (and therefore his wish to continue receiving carer payment). On 10 April 2013 Centrelink conducted a random sample interview, during which Mr Tabije revealed that he was now employed for more than 25 hours each week. On 17 April 2013 Centrelink sent enquiries to Mrs Tabije’s employer (T7) and also to Mr Tabije’s employer (T8). On the same day Centrelink suspended carer payment pending the outcome of these enquiries (T6).

26. Mrs Tabije’s employer provided the information sought on 15 May 2013 (T9). Payslips for the period from December 2009 to April 2013 collected at ST21 show that Mrs Tabije’s regular gross fortnightly salary varied from about $2,100 to about $2,560 over this period.

27. Mr Tabije’s employer provided a declaration signed on 6 May 2013 (ST20). It stated that Mr Tabije worked 30 hours each week and that his employment had begun on 18 May 2011. Information on wages paid and hours worked on a fortnightly basis was provided from May 2011 to April 2013.

28. On 23 May 2013 Centrelink wrote to Mr Tabije (ST23) saying that carer payment had been cancelled because he spent more than 25 hours a week away from Mrs Tabije in order to take up employment.

29. On 29 May 2013 Centrelink raised a debt of $45,396.33 because Mr Tabije’s income had been under-declared or not coded (T11). Centrelink wrote to Mr Tabije (ST22) advising that the debt had been raised because their combined earnings had not been taken into account. The overpayment therefore needed to be recovered. The letter advised that from December 2009 to April 2013 $47, 107.12 had been paid, but entitlements had totalled $1,710.79, leaving a debt of $45,396.33.

30. Mr Tabije sought review (T11) on the basis that he and Mrs Tabije had been advised at a Centrelink office that their FTB payment was sufficient to alert Centrelink to Mr Tabije’s earnings. He also asked that the rejection in 2010 of the application for carer allowance be included in the review. Subsequently he asked that the review be extended to cover the rejection of applications for carer payment and carer allowance in 2001 and 2002. File notes (T11) suggest that Centrelink staff established that the 2002 decision had already been reviewed at the time by an ARO and the SSAT. After discussion with Centrelink, Mr Tabije agreed to pay $100 per fortnight to Centrelink in repayment of the debt.

31. An ARO advised Mr Tabije on 30 August 2013 (T15) that the decision regarding the raising and recovery of the debt had been varied. The start date for the debt had now been set at 13 January 2010. The debt had been increased to $46, 596.45, mainly because of the addition of two payments of carer supplement (for the 2012 and 2013 years). The ARO said that the cancellation decision was correct. Although Mr Tabije had offered an explanation for how he provided care (so as to contest the reasoning that he was not providing the required number of hours of care), the ARO found that Mr Tabije was not qualified for carer payment because his combined income and that of Mrs Tabije was above the income test cut-off. The ARO stated that payments received totalled $48,228, whereas entitlements from late 2009 to mid-2013 were $1,631.55, leaving a debt of $46,596.45.

32. Mr Tabije sought review of the ARO’s decision in the SSAT on 10 September 2013 (T2). The SSAT affirmed the ARO’s decision (T2) and it is that decision that is now under review.

    The evidence of Mr and Mrs Tabije

33. In oral evidence Mrs Tabije said that she has worked 50 hours each fortnight for a few years. She also runs a small business, a migration agency which she participates in through a partnership. It does not earn a great deal –perhaps $10,000 a year spread over five partners. The hours Mrs Tabije puts into the business are variable; she works at it on some of her days away from her main employer.

34. Mrs Tabije said that she has three sons. Two are in Canberra. One son was in Sydney but is now back in Canberra. Another son is enrolled at the ANU but is presently in the Philippines, where the Tabijes support his rent ($1250 per month). He is doing an acting workshop; he cannot work as he is very Australianised and is unfamiliar with the Philippines and does not speak the language well. He will return in December 2014 and go back to university. Another son has moved out of home and is earning.

35. In the past the Tabijes have received youth allowance in respect of two of the sons, but that has now come to an end. Mrs Tabije said that she was the one who managed the youth allowance obligations, including reporting online. She also does the accounting for the family and the business.

1. Mrs Tabije said that she and her husband did not report changes to Centrelink because they thought reporting of income for FTB purposes was sufficient. A letter in February 2010 had advised they were no longer obliged to report unless there were changes. They had supplied payslips to Centrelink, and it was Centrelink’s job to make sense of the information. No-one had asked for Mr Tabije’s payslips, so they were never provided. Mrs Tabije said she did not pay much attention to the regular letters from Centrelink – she was busy and sick and had too many other things on her mind.

2. In oral evidence Mr Tabije said that his family had come to Australia with nothing and had put all their effort into building a life for themselves. They had had to work out for themselves what they were entitled to and work out how to access those entitlements. He emphasised the stress placed on the family by his wife’s illness, and the limitations that and financial constraints had placed on family life. They had retained an old car without insurance because that was all they could afford. It is their culture to support family members until they do not need that support. They were busy and occupied and did not question the payments Centrelink made. There was no intention to deceive Centrelink.

3. Mr Tabije said he did not report his engagement to Centrelink: in the first place he was a contractor rather than an employee; and second, he was not really sure of what to report. He complied with Centrelink requirements. His employer ran a schedule that made his earnings vary considerably from fortnight to fortnight. When he reported his earnings to Centrelink, they had told him to advise when his employment became permanent.

   The applicant’s argument

4. Mr and Mrs Tabije said that the cancellation of the carer payment was not at issue, but argued that

   a)the debt needed to be recalculated as it was too high;

   b)the exemption in s 1223(1B) should apply to them;

   c)the debt should be waived under s 1237A. Their debt had arisen not through their behaviour but through errors by Centrelink. Mr and Mrs Tabije asserted that they had provided Centrelink with everything that was needed to calculate their entitlements accurately, especially through the provision of FTB estimates, which informed Centrelink about their earnings. They could not be accused, therefore, of deceiving or keeping information from Centrelink. If Centrelink had done their job properly the carer payment would never have been granted. The error should also have been picked up earlier through the various reviews by Centrelink. Thus the debt was Centrelink’s fault and it should be waived under s 1237A.

   d)If the debt was not waived under s 1237A, it should be waived under s 1237AAD on the grounds of hardship, ill health and the contribution from Centrelink’s errors. The family has many obligations arising from cultural factors, and this weighs heavily on their financial position. The family is suffering financial and emotional stress because of the debt. Mrs Tabije suffers from multiple health problems. The Tabijes assert that they are honest people. The Centrelink letters asking for advice on changes of circumstances are form letters which it is natural not to read carefully. There was no standing request for updating, for example by provision of fortnightly payslips on an ongoing basis.

   The respondent’s argument

5. The respondent argued that the debt was properly raised and calculated. It should not be written off under s 1236 of the Act: the relevant provision in this case would require that Mr Tabije has no capacity to repay the debt. But Mr Tabije is currently paying it back at $100 per fortnight, and so clearly has the capacity to repay it.

6. Nor should the debt be waived. Under s 1237A of the Act the Secretary must waive a debt if it resulted solely from administrative error. The respondent admitted that Centrelink inaccurately recorded Mrs Tabije’s income, but the Tabijes contributed to the error by inaccurately reporting Mrs Tabije’s income. Even if the payment resulted from Centrelink’s sole administrative error, the payments were not received in good faith, as required under s 1237A. Reporting of information for FTB purposes cannot be used to determine the rate of carer payment, and in any case, when reporting taxable income for FTB purposes the Tabijes under-reported their income.

7. The respondent argued that the debt should not be waived under s 1237AAD, which allows for a debt to be waived in special circumstances other than financial hardship alone. The applicant’s circumstances are not sufficiently different from the usual run of cases to be regarded as ‘special’ in the way the relevant case law requires.

   CONSIDERATION

8. The notes accompanying the ARO’s decision on 30 August 2013 (T14) record that Mr Tabije also asked for earlier decisions to be reviewed. It appears that the ARO produced two separate decisions, one relating to earlier decisions and one relating to the decisions in respect of carer payment in the years 2009-2013. Only the latter ARO decision was the subject of a review application to the SSAT, and my jurisdiction in the current review is therefore limited to the scope of that review.

9. Mr and Mrs Tabije presented a closely united case to me. It is clear that they share their affairs very closely. Mrs Tabije was the care recipient and Mr Tabije the carer, but the close cooperation between them suggests that they managed every aspect of their social security affairs jointly, with full sharing of information. In what follows, therefore, I have often referred to them in the plural and have made no attempt to distinguish between the responsibilities or knowledge of one vis-à-vis the other.

   Was Mr Tabije qualified for carer payment and was the payment payable?

10. Qualification for carer payment in Mr Tabije’s case is determined under s 198 of the Act. To be qualified, a person must undertake the required carer duties, and must pass other tests, among which the relevant test here is the income test, which is provided in s 198A. That section provides that a care receiver passes the income test if their taxable income worked out under s 198B for the tax year determined under s 198C is not more than the income ceiling. The income ceiling is indexed under Part 3.16 of the Act and is specified each year. The income ceilings for the years covered by the Tabijes’ debt, as derived from the historical records of indexed amounts published by the Department of Human Services in ‘A Guide to Australian Government Payments’ are: for 2009 $92,653; for 2010 $94,043; for 2011 $96,959; for 2012 $100,450; and for 2013 $101,656.

11. Under s 198B(1A) Mrs Tabije’s taxable income includes that of Mr Tabije. When Mr and Mrs Tabije completed the income and assets form for Centrelink in January 2010 (T4) they provided information about Mr Tabije’s taxable income in the 2008-09 tax year and an estimate of zero for the 2009-10 tax year. Usually qualification for carer payment is determined on the basis of the most recent assessed taxable income through the operation of s 198B(2), which will generally be for the preceding tax year, through the operation of s 198C(1) and (6). Mr Tabije’s income in 2008-09 would have taken the combined taxable income for the Tabijes above the ceiling for 2009 of $92,653. Under such circumstances, however, ss 198B and 198C allow the current incomplete tax year to be used to determine qualification, based on estimated taxable income. Section 198B(3) allows an estimate of taxable income to be submitted, and s 198B(4) allows the Secretary to accept that estimate if the person does not have an assessed taxable income for the tax year and the tax year has not ended. Section 198C(2) allows the year of application to be the tax year for determining the income of the care receiver, where that is requested in writing and otherwise the person would not qualify. It is appropriate to regard the Tabijes’ completed income and assets form as a request for the application of s 198C(2), as was done by Centrelink. Thus Mr Tabije’s qualification for carer payment in January 2009, when he lodged his application, is to be determined on the basis of the Tabijes’ combined income for 2009-10.  Qualification for the payment after the end of that tax year would in each case be decided on the basis of assessed taxable income for the preceding tax year.

12. When Mrs Tabije completed the income and assets form, she estimated her taxable income at $41,500, with deductions of $6,000 to reduce that to $35,500. There were also some projected deductions for Mr Tabije, despite his having a zero income, to reach a combined taxable income of $31,500. Later figures suggest that the combined taxable income of Mr and Mrs Tabije for 2009/10 was $58,981. While considerably above their estimate, that is nevertheless well below the income ceiling for 2009 ($92,653) and that for 2010 ($96,959).

13. Mr and Mrs Tabije have supplied tax assessments from the Australian Tax Office for 2010/11 and that for Mr Tabije for 2008/09. For 2010/11 Mrs Tabije had a taxable income of $40,688 (amended assessment issued 15 February 2013) and Mr Tabije a taxable income of $37,414 (amended assessment issued 5 July 2012), giving a combined taxable income of $78,102, which is below the income ceiling for 2011 of $96,959 and that for 2012 of $100,450.

14. That Mr Tabije passed the other tests for qualification for carer payment set in s 198 is not at issue. As he also passed the income test in s 198A, Mr Tabije therefore qualified for carer payment at the time of his application.

15. The rate of carer payment is determined under s 1064, with the gross income of carer and partner a major factor. If the calculated rate is nil, the payment is not payable. Thus it is possible that a carer could be qualified for carer payment but the payment would not be payable. I return to this issue, and its influence on the calculation of debt, below.

    Should the payment of carer payment be cancelled?

16. The income cut-off for the calculation of carer payment under s 1064 for a carer who was a member of a couple in April 2013, at the time of the cancellation of the benefit, was $2,705.60 per fortnight (T15). Applying the rate calculator at s 1064, the Tabijes’ combined fortnightly gross income, adjusted in line with the calculator, was above the income cut-off. The benefit was not payable and the carer payment was correctly cancelled.

    Application of subs 1223(1B) and (1C) - does the debt arise?

17. Subsections 1223(1B) and (1C) have particular application to carer payment. Subsection (1B) provides that a carer overpayment debt does not arise where a carer received carer payment but was not qualified for one of three specified reasons: because the care receiver’s income was underestimated; or because the care receiver’s income was amended by the Australian Tax Office, a tribunal or court; or because information about matters likely to affect the payment had not been provided in response to a notice under s 70 of the Administration Act. Subsection (1C) then provides that despite subsection (1B), a debt does arise if the carer knew about the forms of misinformation specified in subsection (1B) that led to the overpayment.

18. On their face, the two subsections deal with the circumstances where the relationship between carer and care receiver is such that the former may not be aware of the latter’s affairs, and so it would not be fair if the carer were to incur a debt because the care receiver has not complied with all the requirements of the legislation. Where the relationship between carer and care receiver is a close one, as would normally be the case between members of a couple, the carer does not escape the debt.

19. The respondent has provided a helpful submission on the operation of these provisions in the context of the Tabijes’ circumstances. As explored above, although the estimates of taxable income for 2009/10 provided by the Tabijes in January 2010 were underestimates, Mr Tabije was nevertheless qualified because their combined taxable income was still below the income ceiling. As Mr Tabije was qualified, it is not the case that the overpayment resulted from his being not qualified. The provisions are entirely about qualification and do not deal with payability. Therefore these provisions have no application in this instance.

    Was the debt properly raised and if so what is the amount of the debt?

20. Under s 1223(1) of the Act, if a payment is made to a person and the person who obtains the benefit was not entitled to it, the amount paid is a debt to the Commonwealth. The amount that has been paid to Mr Tabije is in excess of his entitlement, and the excess is a debt to the Commonwealth and has been properly raised. The ARO set the start date of the debt at 13 January 2010, which is when payments of carer payment began, and the SSAT affirmed the decision. As noted above, at that time Mr Tabije was qualified for carer payment, even if some of the information he supplied to Centrelink was inaccurate. It is possible for a person to be qualified for the benefit, but for it not to be payable. Payability is determined by the application of the rate calculator in s 1064 of the Act, which is complex. The calculation of the debt at T12 shows that carer payment remained payable to Mr Tabije until he took up employment in May 2011, but at a very much lower level than that at which it was paid. Once he became employed, it was no longer payable. I have no evidence that the debt has not been calculated correctly. The calculations are carefully and conscientiously done. The Tabijes would like the debt recalculated, but have brought forward nothing to suggest that the debt calculations were in error.

21. I am therefore satisfied that the amount of the debt is accurate.

    Should the debt be written off?

22. The Tabijes argue that they do not have the capacity to pay off the debt. In support of this they have produced large amounts of detail about their financial circumstances. These illustrate that they have high levels of debt, their house is heavily mortgaged, and their income is largely used to service existing expenses, regular bills such as utilities, and repayment of other debts. They continue to support their children financially. Nevertheless, they are repaying the debt at the moment, at a rate of $100 each fortnight.

23. Clearly the Tabijes have a significant problem with their domestic budget. Perhaps they need some help in changing their practices so that they can bring their debts under control. But it cannot be said that they have an absolute incapacity to pay their Centrelink debt. Commonwealth funds are expected to be disbursed to those who meet the criteria for receiving them, and those who receive payment when they are not entitled to should be expected to repay their debt. The family is surviving at the current rate of repayment. The debt should not be written off.

    Should the debt be waived because of sole administrative error?

24. The Secretary must waive a debt if it has arisen solely because of administrative error by the Commonwealth (s 1237A). The case law is very clear that ‘sole administrative error’ means that there is no contribution to the error by the recipient of the benefit (Sekhon v Secretary, Department of Family and Community Services (2003) 132 FCR 126; Re Gerhardt and Department of Employment, Education & Training [1996] AATA 173; Re Ward and Secretary, Department of Family and Community Services [2000] AATA 212).

25. It is not disputed that Centrelink made errors when it originally assessed the application for carer payment. The first notice sent to Mr Tabije listed combined annual income as $532.86 and combined regular fortnightly earnings at $1,385.37. The annual income figure clearly could not be consistent with the fortnightly figure, and it is no credit to Centrelink’s attention to detail that such an obvious inconsistency would be overlooked. Nevertheless, mistakes are made in the best of organisations from time to time, and the inconsistency should have put Mr and Mrs Tabije on notice that there was some possibility that either they were not entitled to a benefit or not entitled to it at the rate it was being paid.

26. The letters sent to the Tabijes, as listed earlier in this decision, required them to advise Centrelink if their incomes changed. They did not do so, although even the income figure in the original notice was inaccurate. Mrs Tabije says that her income was steady and did not change significantly, but even so there were changes from time to time that went beyond the kind of mimimal changes that might reasonably be ignored. When there was a major change, when Mr Tabije became employed once again, no effort was made to alert Centrelink.

27. Mr and Mrs Tabije argued that their reporting to Centrelink for FTB purposes was also reporting for carer payment purposes, as it informed Centrelink of their annual incomes, and thus should have alerted Centrelink to the disparity. The argument is understandable: Centrelink is a large and well-resourced organisation, with capacity to match data from one program or benefit to another. On the face of it, is it not reasonable that the recipients of benefits should be able to rely on Centrelink to make the necessary connections?

28. The respondent made a submission on this issue. The submission points out the different ways in which FTB and carer payment are calculated: FTB is based on an estimate of projected annual taxable income; carer payment is calculated from gross fortnightly income. In the Tabijes’ case, where Mr Tabije qualified for carer payment for most of the period in question but the payment may not have been payable, the calculation using fortnightly income is the information that is needed by Centrelink to undertake the calculations of the rate of payment from fortnight to fortnight.

29. The case law also throws light on the issue. The general run of decisions from relevant cases is that advising Centrelink of income for FTB purposes does not equate to providing Centrelink with income information for other purposes. In cases such as Rosser and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 47 and Secretary, Department of Families, Community Services and Indigenous Affairs and George [2007] AATA 1456 the Tribunal has decided that advice to Centrelink for FTB purposes did not meet a recipient’s obligations for responding to notices under social security law. Where the Tribunal has decided otherwise, in cases such as Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Walsh [2008] AATA 75, it is because in those cases the recipient made a significant and conscientious effort to keep Centrelink informed.

30. In this instance the Tabijes were clearly familiar with the need to inform Centrelink in order to keep receiving benefits. They provided information to allow continued payment of FTB. In the past they kept Centrelink informed for youth allowance purposes. They were not naive or uninformed. Centrelink’s notices advised them of the need to update the organisation when circumstances changed, and obliged them to do so within 14 days of the change. An annual or biannual advice to Centrelink for FTB purposes cannot be understood to meet that obligation. The Tabijes contributed to the error made in their case and the debt did not arise solely from Centrelink’s administrative error. It should not be waived under s 1237A.

    Should the debt be waived because of special circumstances?

31. Section 1237AAD of the Act establishes a discretion that allows the debt to be waived provided a number of conditions are met, namely that the debt did not arise from the debtor making a false representation or failing to comply with the Act or Administration Act; that there are special circumstances other than financial hardship alone that make it desirable to waive the debt, and that it is preferable to waive rather than write off the debt. In Secretary, Department of Social Security v Hales (1998) 82 FCR 154 French J noted that the provision provides a flexible means of dealing with cases where recovery of the debt would be harsh or unfair. He also noted that the exclusion of financial hardship as the sole element of special circumstances suggest that its inclusion will be usual but not universal (at 162):

    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.

1. Other cases note that ‘special circumstances’ is a concept that should not be applied narrowly or rigidly. The phrase implies circumstances that take the case out of the usual run of cases, but does not require that the circumstances be unique or even exceptional: Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25 and references cited therein.

2. The first question is whether the debt resulted wholly or partly from the Tabijes knowingly making a false representation or omitting to comply with a provision of the Act or the Administration Act. The Tabijes have strenuously maintained that they did everything that was required of them and that they are honest people who have behaved honestly throughout. I have no evidence that any of the information they provided to Centrelink was provided with knowledge that it was mistaken. When payslips were provided to Centrelink in January 2010, and a revised figure for Mrs Tabije’s fortnightly salary later provided, there is nothing to suggest that any intention to deceive was involved, even if the fortnightly figure was later found to be an understatement.

3. On the other hand, the Tabijes have consistently failed to provide accurate figures to Centrelink to correct the errors in their carer payment, and in so doing they have arguably failed to comply with the requirements of ss 66A, 68 or 70 of the Administration Act, which oblige a person receiving a benefit to inform Centrelink of changes in circumstances. The Tabijes argue that their circumstances did not change over an extended period. Nevertheless, it is indisputable that at the very least they changed when Mr Tabije took up employment in May 2011. Did they knowingly fail to comply? The Tabijes say they did not read the notices carefully. On the basis of the evidence it is difficult to reach a firm conclusion. It seems likely that given the pressure on their budget it was convenient for the Tabijes to proceed hoping for the best, and without regard for their obligations. I am inclined, in the absence of compelling evidence to the contrary, to regard that behaviour as just short of the knowing failure to comply that the subsection requires.

4. With regard to whether there were special circumstances, the essence of the Tabijes’ argument is that the combination of financial hardship, administrative error by Centrelink and Mrs Tabije’s ill health together take their case out of the usual run and warrant their circumstances being regarded as ‘special’. I do not agree. The family is under financial pressure, but that is of their own making, through budgetary imprudence. It may be a cultural imperative for them to support their sons financially, but all such imperatives need to be managed within available means. I do not believe that with both Mr and Mrs Tabije in employment and a combined annual income of around $120,000 they can be regarded as in straitened circumstances. Mrs Tabije’s health is evidently not robust, but she is not so frail that some special consideration is warranted so that the debt should not be repaid. As for Centrelink’s error, it was always open to the Tabijes to point out to Centrelink that they had made a glaring mistake. Social security benefits come with obligations, among which the obligation to keep Centrelink informed is central. Finally, there is insufficient interaction among the three aspects suggested as constituting special circumstances to make the argument convincing. Each of these circumstances is on its own part of the usual business of modern life: managing budgets, coping with illness and dealing with a bureaucracy that makes mistakes from time to time is something that is normal rather than special. Those circumstances remain normal in combination.

5. The debt should not be waived under s 1237AAD.

   Conclusion

6. Mr and Mrs Tabije evidently have a problem in managing their domestic budget, and the carer payment they received was no doubt a welcome contribution to their fortnightly expenses. But social security benefits come at the expense of the taxpayer, and the taxpayer would expect that people who receive benefits when they are not entitled to them should have to repay them. Social security is a system of benefits that comes with obligations, notably the obligation to ensure that the benefits are being paid on the basis of current circumstances and accurate information.

   DECISION

7. The decision under review is affirmed.

I certify that the preceding 73 (seventy -three) paragraphs are a true copy of the reasons for the decision herein of Mark Hyman, Member

...............................[sgd].........................................

Associate

Dated 24 October 2014

Date of hearing	1 September 2014
Applicant	In person
Advocate for the Respondent	Tal Aviram
Solicitors for the Respondent	Programme Litigation and Review Branch, Department of Human Services