Riediger and Secretary, Department of Social Services (Social services second review)
[2024] AATA 118
•5 February 2024
Riediger and Secretary, Department of Social Services (Social services second review) [2024] AATA 118 (5 February 2024)
Division:GENERAL DIVISION
File Number:2022/4320
Re:Kurt Riediger
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member Andrew McLean Williams
Date5 February 2024
Place:Brisbane
In accordance with s.43(1) of the Administrative Appeals Tribunal Act 1975, the decision of the SSCSD (as subsequently varied by Services Australia pursuant to section 182 of the Social Security (Administration) Act 1999 (Cth) on 13 December 2022) to raise and recover a Newstart Allowance/Jobseeker Payment debt against the Applicant of $22,253.37 for the period 11 July 2018 to 19 March 2020 is affirmed by the Tribunal.
...............................[SGD].........................................
Member Andrew McLean Williams
CATCHWORDS
SOCIAL SECURITY – Applicant Newstart Allowance/Jobseeker Payment – Review of Decision of SSCSD - overpayment– debt due to the Commonwealth – whether debt attributable solely to administrative error by the Commonwealth – whether debt or part of debt would be waived or written off – whether special circumstances apply – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth): s.43
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
REASONS FOR DECISION
Member Andrew McLean Williams
5 February 2024
INTRODUCTION
By an Application for Review of a Decision filed before the Tribunal on 22 May 2022,[1] Mr Kurt Riediger seeks a review of a decision of the Social Services and Child Support Division (‘the SSCSD’) of the Tribunal made on 4 August 2021, as varied by Services Australia on 13 December 2022 pursuant to s.182 of the Social Security (Administration) Act 1999 (‘the Administration Act’), wherein it had been determined that Mr Riediger has a Newstart Allowance/Jobseeker Payment debt of $22,253.37, referable to the period 11 July 2018 to 12 May 2020.
[1] T1, p. 1.
Issues before the Tribunal
On the hearing of this application for review, the issues to be determined are:
(a)Whether Mr Riediger has a Newstart Allowance/Jobseeker Payment debt of $22,253.37 for the period 11 July 2018 to 12 May 2020 (‘the debt period,); and if so
(b)whether the debt should be recovered, in part or in full.
FACTUAL BACKGROUND
Mr Riediger has been in receipt of Newstart Allowance (with some periods of suspension and cancellation) since 27 June 1991.[2]
[2] T18, p.202.
Although having a regular reporting history since 4 March 2003,[3] Mr Riediger did not declare any income, nor have there been any reported changes in his circumstances.
[3] T18, pp.211-212.
On 20 March 2020, Mr Riediger was transferred to the newly-styled ‘Jobseeker Payment’, in lieu of the former ‘Newstart Allowance’.
Records held by Services Australia indicate that Mr Riediger has been in a partnered (ie: de-facto) relationship to Ms Linda Williams since 25 March 2002.[4]
[4] T18, p. 217.
On 2 December 2015, 9 December 2015, 30 December 2015, 1 December 2016, 14 December 2016, and 6 August 2019, Services Australia issued Mr Riediger with notices in relation to his Newstart Allowance, pursuant to s.68(2) of the Administration Act. These Notices set out Mr Riediger’s rate of payment, and the reported total fortnightly income amount (either $0.01 or $0.03) that had been used as the basis for calculation of his rate of Newstart Allowance payment. The Notices also enclosed a reporting statement, requiring that Mr Riediger report his earnings and other information by a particular date. In particular, the s.68(2) notices asked whether Mr Riediger’s partner undertook any paid work, and if so, required that Mr Riediger also report her earnings. Mr Riediger did not respond to any of these Notices.
On 29 December 2016, 23 January 2017, 7 February 2017, 8 February 2017, 6 April 2017, 20 November 2017, 28 November 2017, 19 April 2018, 26 April 2020 and 7 May 2020, Services Australia issued Mr Riediger with further notices in relation to his Newstart Allowance/Jobseeker Payment; again pursuant to s.68(2) of the Administration Act. The s.68(2) Notices sent on these dates set out his rate of payment, as well as the total fortnightly income reported by Mr Riediger ($0.03) that had been used as the basis to calculate his rate of payment. These Notices included the following statement[5]:
[5] T4, p. 188.
What you must tell us
You must tell us within 14 days about events or changes in circumstance affecting your payment. A list of the events you need to report is shown below. If you get a Reporting Statement, report your earnings or changes in circumstances on your due date. You do not get a Reporting Statement, can tell us about any changes via self-service (online or phone), in writing (fax or post), or by attending any of our service centres.
This is an information notice given under the social security law.
You must tell us if any of the changes listed below happen or are likely to happen:
…./
· You or your partner start to receive or stop receiving income, your or your partner’s income changes from the rate last notified or the income shown above is incorrect.
[emphasis included, by the Tribunal]
On 31 July 2017, Mr Riediger’s partner, Ms Williams, commenced employment with Compass Group Australia (Compass Group) in a retail position at the Queensland Children’s Hospital/Lady Cilento Hospital.[6] Initially, this employment had been part-time as a Food and Beverage Attendant, however, Ms Williams was subsequently employed on a full-time basis, as a Team Leader.
[6] T9, p.77.
Ms Williams’ earnings with Compass Group varied throughout the period of Mr Reidiger receiving Newstart Allowance/Jobseeker Payment. As calculated by Services Australia (and now unchallenged by Mr Riediger), Ms Williams’ earnings from Compass Group over the debt period were as follows:
Entitlement Period:
Earnings
7 July 2018 - 24 July 2018
$1,550.39
14 November 2018 - 27 November 2018
$2,476.46
26 December 2018 - 8 January 2019
$1,409.87
20 February 2019 - 5 March 2019
$1,709.21
17 April 2019 - 30 April 2019
$2,315.79
13 June 2019 - 25 June 2019
$1,670.70
4 September 2019 - 17 September 2019
$1,967.74
2 October 2019 - 15 October 2019
$2,386.95
22 January 2022 - 4 February 2020
$2,524.14
1 April 2020 -14 April 2020
$1,965.08
90 9 April 2020 - 12 May 2020
$2,156.51
Services Australia had become aware of the fact of Ms Williams’ employment with Compass Group on 24 January 2018 by means of data matching analysis, and not because of any information that had been provided by Mr Riediger.[7] On the same date, Services Australia sent Mr Riediger a SMS text message specifying:
The Department of Human Services has received information that your employment details have changed. This could affect your Centrelink payments. Please update your details. Do not reply by SMS.[8]
[7] T18, p. 207.
[8] T19, p.219.
On 17 April 2018, Mr Riediger contacted Centrelink (ie Services Australia) by telephone. The Centrelink file note of that conversation records the following[9]:
Customer reported for the period 4 APR 2018 – 17 APR 2018
Customer answered No to:
has there been a change in your circumstances that you have not already told DHS about?
No income reported for Customer
Customer answered Yes to: Is the information you have provided, complete, true and correct?
[9] R4, p. 8.
Throughout the debt period Mr Riediger reported to Centrelink each fortnight.[10] However in the process, he did not declare any income of his own or otherwise advise that there had been any changes in his circumstances. Because of that, Mr Riediger received the maximum allowable amount of Newstart Allowance/Jobseeker Payment throughout the debt period.[11]
[10] T18, pp. 211-212.
[11] T18, pp. 203 – 205.
On or about 7 May 2020, Services Australia identified that Mr Riediger had not been declaring Ms Williams’ employment income. In consequence, Services Australia issued Mr Riediger with a further notice pursuant to s.68(2) of the Administration Act, this time requiring that he provide Ms Williams’ payslips from Compass Group for the period 31 July 2017 to 23 February 2020. These payslips were provided on 7 May 2020,[12] 8 June 2020,[13] and 11 June 2020.[14]
[12] T9, pp. 76-82.
[13] T10, p. 83-106.
[14] T12, pp. 139-142.
On 14 January 2021, Services Australia raised a Newstart Allowance/Jobseeker Payment debt against Mr Riediger in the amount of $23,072.86, referrable to the period from 11 July 2018 to 12 May 2020; assessed on the basis that an incorrect amount for his partner’s employment income from Compass Group had been used to calculate Mr Riediger’s entitlement to Newstart Allowance/Jobseeker Payment. Mr Riediger was subsequently issued with an official notice of this decision, dated 18 January 2021.[15]
[15] T21, p. 258.
On 19 January 2021, Mr Riediger requested a review of the decision embodied in the notice issued on 18 January 2021.[16]
[16] T20, p. 238.
A Centrelink file note indicates that Mr Riediger claims that he had attended the Browns Plains Centrelink Office to report his partner’s income, and that he had been advised that that time that he was ‘only required to report her income once’, and that he ‘did not understand’ the reporting requirements.[17]
[17] T20, p.242.
A further Centrelink file note made on 18 March 2021 records as follows:
For records; when I spoke to client and his partner (they had speakerphone) they stated they were
(sic) told they only had to notify once about employment. They could not give me a general date of when that conversation occurred. I asked client when did he notify us when his partner commenced work at compass. He told me he cannot remember that long ago. He told me he will take this matter to court. I have asked him to write a letter and upload it so that he can state why the overpayment is not valid and or explain what he was told in the past about reporting employment income or any other information he would like to mention. I have advised client he may want to seek legal advice as he stated he will take the matter to court numerous times. Refer onwards to ARO as per his request.[18]
[18] T20, p. 242
On 7 April 2021, an Authorised Review Officer (‘ARO’) varied the decision, after having identified errors in the original debt calculations. After recalculation, the debt amount increased to $24,446.25. The ARO also found that the debt was recoverable in full. The ARO identified that Ms Williams had commenced her employment with the Compass Group on 31 July 2017, however the debt had originally been assessed from 11 July 2018 (‘the ARO decision’).
On 19 April 2021, Services Australia issued Mr Riediger with another notice pursuant to s.68(2) of the Administration Act, which required that he provide Ms Williams’ payslips from Compass Group for the period of 31 July 2017 to 10 July 2018.[19]
[19] T21, p.256.
On 20 April 2021, Mr Riediger applied to the SSCSD seeking a review of the ARO decision made on 7 April 2021.[20] In his Application for Review, Mr Riediger stated in part: “Have always advised of my wife’s income, do not understand how I have a debt.”
[20] T15, p.154.
On 29 April 2021, Services Australia received Ms Williams’ payslips from Compass Group for the period of 31 July 2017 to 10 July 2018, in response to the s.68(2) notice that had been issued on 19 April 2021.[21]
[21] T16, pp. 156-167.
On 4 August 2021, the SSCSD affirmed the ARO decision (‘the SSCSD decision’).[22]
[22] T2.
On 27 September 2022, Services Australia issued Compass Group with an information notice pursuant to s.196 of the Administration Act to obtain further information regarding Ms Williams’ income.[23] Information in response to the s.196 notice was provided by Compass Group on 27 September 2022,[24] 13 October 2022,[25] and on 25 October 2022.[26]
[23] ST1.
[24] ST2.
[25] ST3.
[26] ST4.
Services Australia then undertook a recalculation of the debt based upon Ms Williams’ verified daily earnings.[27] On 13 December 2022, Services Australia decided, pursuant to s.182 of the Administration Act, to now vary the SSCSD decision, consistent with that recalculation to reflect that Mr Riediger now had a Newstart Allowance/Jobseeker Payment debt of $22,253.37 for the period from 11 July 2018 until March 2020. On 13 December 2022, Mr Riediger was issued with another notice, advising him of the recalculated debt amount.[28]
[27] ST5.
[28] ST6.
Mr Riediger is presently in receipt of Jobseeker Payment of $762.70 per fortnight. The outstanding debt balance (as at 25 January 2023) was $22,164.68, which is presently being repaid by way of withholdings from Mr Riediger’s Jobseeker Payment of approximately $15 per fortnight.[29]
[29] R4, p. 94.
On 23 June 2021, Mr Riediger completed a Statement of Financial Circumstances declaring that he is unemployed.[30] He also stated that Ms Williams is employed as a Retail Assistant at IGA, where she earns $2,077.63 (gross) per fortnight. Mr Riediger identified total household expenses of $1,437.76 per fortnight. He also identified a car loan of $28,000, with repayments of $105 per week.
[30] T2, p.10.
Mr Riediger’s Contentions:
The Tribunal hearing in this matter was held on 12 September 2023, by telephone. During the Tribunal hearing, Mr Riediger contended that:
-the Jobseeker Payment/Newstart Allowance debt “is a fake debt”;
-When Linda (ie: his partner, Ms Williams) went full-time at Compass Group they had gone into the Centrelink Office at Browns Plains to advise Centrelink about Ms William’s full-time employment, and the counter officer had said “there was not any need to continue to report Linda’s income”. This was in about 2018.
-Mr Riediger “never received any letters” (here referring to the s.68(2) notices).
RELEVANT LAW AND POLICY:
The applicable law is contained in the Social Security Act 1991 (‘the Act’) and in the Administration Act.
Both Newstart Allowance and Jobseeker Payment are ‘means-tested’ payments. In other words, the amount of either payment that a person is eligible to receive will vary, depending on whether they receive income or financial support from other sources.
Section 643 of the Act provides that a person’s rate of Newstart Allowance/Jobseeker Payment is to be calculated by reference to Benefit Rate Calculator B, found at the end of s.1068 of the Act. Amongst other things, Module G in Benefit Rate Calculator B sets out that the ordinary income of a partner of the person who is applying, will impact on that person’s maximum payment rate for Newstart Allowance/Jobseeker Payment. The effect of the same is that Ms Williams’ employment income has a bearing on the calculation of Mr Riediger’s entitlement to social security payments.
There is an ongoing legal obligation for social security recipients to report changes in their circumstances. In this regard, s.66A(2) of the Administration Act provides that if:
(a)either:
(i) a social security payment (other than utilities allowance or energy supplement under Part 2.25B of the 1991 Act) is being paid to a person; or
(ii) a person holds a concession card; and
(b)an event or change of circumstances occurs that might affect the payment of that social security payment or the person's qualification for the concession card;
(c)the person must, within 14 days after the day on which the event or change occurs, inform the Department of the occurrence of the event or change.
Social security law also contains a mechanism that requires social security recipients to respond to requests for information. To this end, s.68(2) of the Administration Act provides:
The Secretary may give a person to whom this subsection applies a notice that requires the person to do any or all of the following:
(a)inform the Department if:
(ii)a specified event or change of circumstances occurs; or
(iii)person becomes aware that a specified event or change of circumstances is likely to occur;
(b)give the Department or more statements about a matter that might affect the payment to the person of the social security payment;
(c)give the Department one or more statements about the matter that might affect the operation or prospective operation, of Part 3B relation to the person.
The Respondent now contends that Mr Riediger received all the s.68(2) notices now identified (above) in paragraphs [7] and [8] of these reasons. In this regard, Section 9(2) of the Electronic Transactions Act 1999 (Cth) (‘Electronic Transactions Act’) provides:
If, under a law of the Commonwealth, a person is permitted to give information in writing, the person may give the information by means of an electronic communication, where:
(a)in all cases--at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; and
(b) if the information is permitted to be given to a Commonwealth entity, or to a person acting on behalf of a Commonwealth entity, and the entity requires that the information be given, in accordance with particular information technology requirements, by means of a particular kind of electronic communication--the entity's requirement has been met; and
(c) if the information is permitted to be given to a Commonwealth entity, or to a person acting on behalf of a Commonwealth entity, and the entity requires that particular action be taken by way of verifying the receipt of the information--the entity's requirement has been met; and
(d)if the information is permitted to be given to a person who is neither a Commonwealth entity nor a person acting on behalf of a Commonwealth entity--the person to whom the information is permitted to be given consents to the information being given by way of electronic communication.
Section 14A of the Electronic Transactions Act provides:
Time of receipt
(1) For the purposes of a law of the Commonwealth, unless otherwise agreed between the originator and the addressee of an electronic communication:
(a) the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee; or
(b) the time of receipt of the electronic communication at another electronic address of the addressee is the time when both:
(i)the electronic communication has become capable of being retrieved by the addressee at that address; and
(ii)the addressee has become aware that the electronic communication has been sent to that address.
Section 72 of the Administration Act also permits Services Australia to give a notice containing a requirement under s.68(2) of the Administration Act to Mr Riediger by means of ordinary post, or by any other means that has been approved by the Secretary, which now includes by e-mail, via the ‘myGov’ system. Mr Riediger subscribed to the myGov system on 22 November 2015 and in the process of doing so, acknowledged the implications of subscribing to myGov. As such, under s.14A of the Electronic Transactions Act 1999, he is deemed to have received all of the s.68(2) notices when these became available for viewing in his myGov inbox, whether he had looked at these or not.
Does Mr Riediger have a Social Security debt?
Section 1223 of the Act specifies that if a person is paid more than their social security entitlement, then the excess payment amount is a debt to the Commonwealth.
Mr Riediger failed to declare Ms Williams’ employment income for the purpose of the calculation of his entitlement to Newstart Allowance/Jobseeker Payment, as required by s.66A and s.68(2) of the Administration Act. Over the debt period, Mr Riediger was entitled to $8,404.92, yet was paid $30,658.29 because Ms Williams’ income had not been included as part of the calculation. In consequence, he was overpaid by $22,253.37, and the excess payment amount now becomes a debt to the Commonwealth, pursuant to s.1223.
Mr Riediger has not sought to challenge the arithmetic basis for the calculation of the overpayment debt, other than to now claim it to be broadly ‘unfair’ and ‘wrong’. The Tribunal can see no logical basis for disturbing the basis for calculation of the overpayment amount. There is no demonstrable error in the calculation of that debt amount. Nor can the Tribunal identify any basis for the debt being wrong at law, as now alleged by Mr Riediger.
SHOULD MR RIEDIGER’S DEBT BE RECOVERED?
There is an expectation that overpayments of social welfare will be recovered. In Secretary, Department of Social Services v Hales (1998) 82 FCR 154 at 155, French J (as he then was) said:
“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 person concerned”
Can there be a write-off of this debt?
Pursuant to s.1236 of the Act, a social security debt may be ‘written off’, if the debtor has no capacity to repay the debt. A debtor is taken to have capacity to repay the debt unless recovery would result in the debtor being put into severe financial hardship.
The term ‘severe financial hardship’ is undefined in the Act. However, in Re Mary Lumsden v Secretary, Department of Social Security [1986] AATA 228, the Tribunal (at [20] – [21]) required that for severe financial hardship to arise, a person’s total financial position would need to be materially less than the current rate of pension. Similarly, in Stubbs v Secretary, Department of Families and Community Services, the Tribunal said (at [20]):
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 Respondent submits that Mr Riediger does not meet the requirements of s.1236 because he has some capacity to repay the debt, by way of modest withholdings from his fortnightly Jobseeker Payment.
Mr Riediger is currently repaying the debt by way of withholdings of approximately $15 per fortnight, and this has been occurring since 31 August 2022.
There is no evidence before the Tribunal to suggest that the debt is irrecoverable at law, or that any of the other write-off provisions might apply. The Tribunal is not satisfied that recovery of the debt by means of modest fortnightly withholding will put Mr Riediger into circumstances of severe financial hardship. There is no evidence of that.
Waiver of the debt on the basis of ‘sole administrative error’?
Section 1237A of the Act provides that the recovery of the debt may also be waived, if the debt is received by the person in good faith and was solely caused because of an error by the Commonwealth. In this instance, the overpayment was not in consequence of any sole administrative error by the Commonwealth. Rather, the overpayment arose by reason of Mr Riediger’s failure to inform Centrelink of his changed circumstances in the manner required in response to the s.68(2) Information Notices, within 14 days after the day on which the event or change occurred.[31] In these circumstances, s.1237A is also not available to Mr Riediger. There is ample authority to the effect that sole administrative error cannot be found to have arisen in circumstances in which any overpayment arises by reason of failure by an Applicant to comply with reporting requirements made clear to them in notices issued pursuant to s.68(2) of the Administration Act.[32]
[31] Mr Riediger has received at least sixteen s.68(2) Notices, prior to and during the relevant debt period.
[32] Consider: Stafford v Secretary, Department of Social Services [2018] AATA 2746 at [78]; GGGD v Secretary, Department of Social Services [2020] AATA 802 at [79] – [85]; Moir v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 48 at [79].
Is there any possibility for a ‘Special Circumstances’ waiver?
Section 1237AAD of the Act allows recovery of the debt to be waived in whole or in part in ‘special circumstances’, and states in part:
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 full statement or false representation; or
ii)telling or omitting to comply with the 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.
Knowing failure
The Tribunal considers that Mr Riediger is unable to meet the requirements of s.1237AAD(a) (above), by reason that he has failed to comply with his reporting obligations during the debt period to report Ms Williams’, employment income.
The term ‘knowingly’ is not defined in the Act. However, Mr Riediger was issued with at least sixteen notices under s.68(2), thus putting him on notice of his reporting obligations and about the incorrect information about his partner’s income being relied upon by Services Australia, which he failed to correct by means of his reporting of the correct information. In addition, Mr Riediger did not report any income and failed each fortnight to advise Services Australia of his partner’s fluctuating income.
In Woolley and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 26, Deputy President McDonald stated at [37] – [38]:
To avoid meeting the definition of ‘knowingly’ by turning a blind eye and throwing Centrelink’s notices, unread, into a draw is in the view of the Tribunal to knowingly fail or omit to comply with an obligation with a provision of the Act where the recipient has a duty, under s.68 of the Administration Act, to respond to a notice to provide information requested by the Secretary. The currently accepted manner for the Secretary to give notice that he wants information is by way of corresponding to a recipient. A recipient who refuses to open such a letter sent by the Secretary is knowingly refusing to comply with the request.
Further social security recipients receive public moneys. It must be taken that the Australian population is aware the public moneys are distributed under the Act on the basis of need according to graduated scales to ensure the most needy receive the full benefit and those with correspondingly less need receive more limited support. Attached to the receipt of any public money is an ongoing responsibility for the recipient to ensure information in his/her control is provided to ensure he or she is qualified to receive the amount paid. An intentional disregard of that responsibility by not reading letters which remind recipients of their responsibilities and a failure to assess the level or income or assets is to knowingly disregard a recipient's responsibilities. If all people who commenced receiving benefits did not to read and take responsibility for complying with the requirements notified then there would be an unacceptably large increase in benefits being paid to those who did not qualify. If all such people ignored correspondence reminding them of their responsibilities and claimed that they had no knowledge of the requirements and claimed that they did not know of the requirements then it is not too cynical to conclude that the only likely notifications the department would receive would be from those seeking an increase in their benefits. That situation must be distinguished from other circumstances where age or incapacity or some other legitimate reason may result in a recipient forgetting or innocently overlooking fulfilling a requirement. That, however, is not the case here.
In Barnes and Secretary, Department of Social Services [2014] AATA 786, the Tribunal stated, at [44] – [50]:
“The case law is clear that a ‘sole’ administrative error means that there is no contribution to the error by the recipient of the benefit: see e.g. Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190; (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.
…/
Sole administrative error does not require that Centrelink made no mistakes, but that the debtor made no contribution to the error. When Centrelink sent out an information notice on 20 September 2010, it included a requirement that Ms Barnes advise when her partner’s income went above $800 per fortnight, a figure it was already above. Ms Barnes does not remember reading that, and she suggests that not all letters arrive at a country address. Further, she suggests that she was under the impression that if her partner’s income stayed below $42,000 annually her benefit would be unaffected. I do not accept Ms Barnes ’s explanation. The figure of $42,000 has no obvious source, and that Ms Barnes mistakenly believed it to be the figure at which the benefit would be affected has no bearing on my decision. Letters do go astray from time to time, but rarely, and surely not all the letters from Centrelink did so. As the respondent points out, under ss 28A and 29 of the Acts Interpretation Act 1901, Ms Barnes is taken to have received them. Ms Barnes seems to have treated the information notices, whether she did not read them, read them cursorily or read then carefully, with blithe disregard. After Centrelink began to send them out in September 2010 Ms Barnes became a contributor to the error.
…./
Ms Barnes ’s argument treats the receipt of Centrelink benefits as a form of ‘set and forget’ arrangements in which the onus of calculating and delivering benefits was entirely on Centrelink’s shoulders. That is not how the social security system operates: it is a system of mutual entitlements and obligations. A person may establish that they have entitlements, but the entitlements come with obligations, central among which is the obligation to keep Centrelink informed. Ms Barnes did not do so – indeed she seems to have made no effort at all to do so – and the overpayment is the result of that inactivity.
I find therefore that the error was not the sole administrative error of Centrelink from the time of the first information notice.
Special Circumstances
In addition to s.1237AAD requiring that the debt to not have arisen in consequence of the person knowingly having made false statements or having failed to comply with information obligations, s.1237AAD(b) requires that there be “special circumstances” (other than financial hardship alone) that make it desirable to waive the debt.
The Tribunal considers that Mr Riediger is unable to meet the requirements of s.1237AAD(b) (above).
Although the term “special circumstances” as used in that provision is not defined in the Act, it has been considered extensively by the Courts and Tribunals. In Beadle v Director-General of Social Security (1984) 6 ALD 1, the Tribunal stated at [12]:
An expression such as “special circumstances” is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon, or exceptional. Whether circumstances answer any of those descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique, but they must have a particular quality of unusualness that permits them to be described as special.
In Groth v Secretary, Department of Social Security [1995] FCA 1708, the Federal Court stated, at [12]:
‘The phrase “special circumstances”, it has been said, though imprecise is sufficiently understood not to require judicial gloss… it is sufficient to observe it would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case. That was, I consider, the only enquiry to be undertaken in this case. It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred, that there must be some feature out of the ordinary…’
Mr Riediger has not identified (or claimed) any special circumstances grounds for consideration and continues to maintain that he provided the necessary information about his partner’s income to Centrelink on one occasion, on an unspecified date in 2018, when he was also told that it was unnecessary for him to continue to advise Centrelink regarding Ms Williams’ employment income. The Tribunal does not accept that Mr Riediger was advised that it was unnecessary to report Ms Williams’ income in the manner now contended; and nor does the Tribunal accept that Mr Riediger told the Centrelink Office on one occasion in 2018 about Ms Williams’ income. There is no extrinsic evidence to corroborate Mr Riediger now claiming these things, and the claimed advice regarding needing to report Ms Williams’ income only once is completely inconsistent with the s.68(2) notices subsequently sent to Mr Riediger (received in his MyGov inbox) on multiple occasions, which required ongoing reporting regarding income amounts.
The Tribunal is unable to independently discern any aspect of this case that might now give rise to a claim of special circumstances.
DECISION
In accordance with s.43(1) of the Administrative Appeals Tribunal Act 1975, the decision of the SSCSD, varied by services Australia pursuant to section 182 of the Administration Act on 13 December 2022 to raise and recover a Newstart Allowance/Jobseeker Payment debt of $22,253.37 for the period 11 July 2018 to 12 May 2020 is affirmed.
I certify that the preceding 58 paragraphs are a true copy of the reasons for the decision herein of Member Andrew McLean Williams
......................[SGD].........................................
Associate
Dated: 6 February 2024
Date of hearing:
12 September 2023
Mode:
By telephone
Solicitor for the Respondent:
[Christ West]
[Services Australia]
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