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

RLGV and Secretary, Department of Social Services (Social services second review) [2021] AATA 1787 (17 June 2021)
Division:GENERAL DIVISION
File Number(s): 2020/0095
2020/0096

Re:RLGV
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member A Poljak
Date:17 June 2021
Place:Sydney

The decision under review is affirmed.
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Senior Member A Poljak
CATCHWORDS
SOCIAL SECURITY – youth allowance – parenting payment – whether applicant was a member of a couple – financial aspects of relationship – nature of commitment – social aspects of relationship – sexual relationship – nature of household – recoverable debt – whether debts can be waived or written off – decision under review affirmed
LEGISLATION
Social Security (Administration) Act 1999 (Cth) s 68
Social Security Act 1991 (Cth) ss 4, 8, 1223, 1237A, 1237AAD
CASES
Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25
Beadle v Director-General of Social Security (1985) 60 ALR 225
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
REASONS FOR DECISION
Senior Member A Poljak
17 June 2021

RLGV, the applicant, was first granted youth allowance on 14 October 2008, which she received until 24 April 2013. The applicant has subsequently been in receipt of various social security payments, including parenting payment (single), parenting payment (partnered), youth allowance and Newstart allowance. The applicant was sent numerous notices under section 68 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) advising her to inform the Secretary, Department of Social Services (the Secretary) of her income from her employment and her relationship status.
On 13 November 2018, the Secretary decided that the applicant was a member of a couple with Mr ‘B’ from 11 April 2017.
On 14 November 2018, the Secretary raised a youth allowance debt of $10,970.58 for the period from 29 June 2010 to 14 May 2012 on the basis that the applicant’s correct earnings from McDonalds were not considered. On 30 November 2018, the Secretary varied the youth allowance debt amount to $6,607.55 in relation to the period from 13 July 2010 to 16 April 2012.
On 3 December 2018, the Secretary also raised the following debts against the applicant:
(a)a youth allowance debt of $3,968.54 for the period from 4 February 2014 to 19 March 2015 on the basis that the applicant’s correct earnings from McDonalds were not taken into account;
(b)a parenting payment (single) debt of $5,433.79 for the period from 24 March 2015 to 19 October 2015 on the basis that the applicant’s correct earnings from McDonalds were not taken into account;
(c)a parenting payment (partnered) debt of $114.29 for the period from 28 October 2015 to 2 November 2015 on the basis that the applicant’s correct earnings from McDonalds were not taken into account;
(d)a parenting payment (single) debt of $2,566.20 for the period from 15 December 2015 to 27 June 2016 on the basis that the applicant’s correct earnings from McDonalds were not taken into account;
(e)a youth allowance debt of $2,364.38 for the period from 12 July 2016 to 3 April 2017 on the basis that the Applicant’s correct earnings from McDonalds were not taken into account; and
(f)a youth allowance debt of $4,992.85 for the period from 11 April 2017 to 8 August 2017 on the basis that the applicant was a member of a couple.
On 4 December 2018, the Secretary raised a parenting payment (single) debt of $20,475.99 for the period from 28 August 2017 to 12 November 2018 on the basis that the applicant was a member of a couple.
On 23 January 2019, an Authorised Review Officer (ARO) affirmed the decision of the Secretary to find that the applicant was a member of a couple with Mr B from 11 April 2017 and also affirmed the decisions of the Secretary to raise and recover the eight separate youth allowance/parenting payment debts totalling $46,523.59 (as described above) that arose during the period from 13 July 2010 to 12 November 2018.
From 8 February 2019, the Secretary decided that the applicant was no longer a member of a couple.
On 22 November 2019, the Social Security and Child Support Division of the Administrative Appeals Tribunal (SSCSD) affirmed the decisions made by the Secretary that the applicant was a member of a couple with Mr B from 11 April 2017; and that the applicant was overpaid social security payments as detailed above (excluding the youth allowance debt of $3,968.54 for the period from 4 February 2014 to 19 March 2015); and these overpayments were recoverable debts due to the Commonwealth (reviewable decision).
Issues
The issues for determination in this matter are:
(a)whether the applicant was a member of a couple with Mr B from 11 April 2017 until 8 February 2019;
(b)whether the applicant was overpaid:
(i)youth allowance in the amount of $6,607.55 during the period from 13 July 2010 to 16 April 2012;
(ii)parenting payment (single) in the amount of $5,433.79 during the period from 24 March 2015 to 19 October 2015;
(iii)parenting payment (partnered) in the amount of $114.29 during the period from 28 October 2015 to 2 November 2015;
(iv)parenting payment (single) in the amount of $2,566.20 during the period from 15 December 2015 to 27 June 2016;
(v)youth allowance in the amount of $2,364.38 during the period from 12 July 2016 to 3 April 2017;
(vi)youth allowance in the amount of $4,992.85 during the period from 11 April 2017 to 8 August 2017; and
(vii)parenting payment (single) in the amount of $20,475.99 during the period from 28 August 2017 to 12 November 2018; and
(c)whether there is any basis to write off or waive part or all of the debts resulting from the overpayments.
Consideration
Was the applicant a member of a couple during the period 11 April 2017 until 8 February 2019?
The Secretary contends that, as per paragraph 4(2)(b) of the Social Security Act 1991 (Cth) (the Act), the applicant was a member of a couple with Mr B from 11 April 2017 until 8 February 2019 (relevant period).
Subsection 4(2) of the Act provides the definition of ‘member of a couple’ (for social security purposes). Relevantly, paragraph (2)(b) states:
Member of a couple—general
(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
…
(b) all of the following conditions are met:
(i) the person has a relationship with another person, whether of the same sex or a different sex (in this paragraph called the partner);
(ii) the person is not legally married to the partner;
(iii) the relationship between the person and the partner is, in the Secretary’s opinion (formed as mentioned in subsections (3) and (3A)), a de facto relationship;
(iv) both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v) the person and the partner are not within a prohibited relationship.
Relevantly, in forming an opinion about the relationship between two people, the Secretary is to have regard to all the circumstances of the relationship, in particular, the following matters, pursuant to subsections 4(3) and 4(3A) of the Act:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint liabilities; and
(ii) any significant pooling of financial resources especially in relation to major financial commitments; and
(iii) any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day‑to‑day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to, or in a de facto relationship with, each other; and
(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people’s commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that the people provide to each other; and
(iii) whether the people consider that the relationship is likely to continue indefinitely; and
(iv) whether the people see their relationship as a marriage‑like relationship or a de facto relationship.
(3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a de facto relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.
When deciding whether or not a person is in a relationship, the decision maker must have regard to the interpersonal relationship as a whole, not limited by the factors listed in subsection 4(3) and must specifically consider the “total picture of the relationship created by all of these factors”; Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546.
During the relevant period, the evidence indicates the applicant was residing at two addresses, namely, at Salamander Bay NSW with Mr B (Salamander Bay); and at Calala NSW with Mr B’s mother (Tamworth), Ms ‘K’. Despite residing at two residences, the nature of the household supports a finding that the applicant was a member of a couple with Mr B during the relevant period.
At hearing, the applicant was adamant that she never lived in Salamander Bay. She said she lived with Ms K in Tamworth and only stayed in Salamander Bay with Mr B due to medical reasons during the final few weeks of her pregnancy. This however is inconsistent with the contemporaneous evidence. For example, on 12 April 2017 and 18 April 2018, the applicant advised Centrelink that she was living at Salamander Bay; a phone bill from Optus dated 2 November 2018 records the applicant’s address as Salamander Bay; in a Centrelink Relationship Details Form, the applicant advised “I have always lived at two addresses” and “stay at 2 addresses”; and in a Police Statement dated 26 March 2018, the applicant said “I live in Salamander Bay and we travel in between here and Tamworth for the kids”, and “police attended our premises in Salamander Bay”.
The applicant’s own contemporary evidence was that she wanted to reside permanently with Mr B in Salamander Bay but was required to have an address in Tamworth due to court orders concerning her children with her ex-partner. On 8 March 2018, in an affidavit prepared for the Federal Circuit Court, the applicant stated that she has a daughter born on 9 August 2017 to her current partner, Mr B. She states she lives part-time in Salamander Bay with her partner and part-time in Tamworth. The applicant also states she stays in Salamander Bay with her current partner (Mr B) and in Tamworth with her partner’s mother (Ms K). In a statement provided to the Secretary dated 23 March 2018, the applicant states that in a perfect world with no court orders, they would live together all the time at Salamander Bay however she can only stay at their address in Salamander Bay for two to three nights per week if that.
When the applicant resides at Salamander Bay, the only occupants of the house are the applicant, Mr B and the applicant’s children. On 23 March 2018, the applicant indicated that she and Mr B use the same bedroom when she resides at Salamander Bay.
The applicant has two children from a previous relationship and has one child with Mr B. The applicant and Mr B shared joint responsibility in providing care and support in respect of all three children during the relevant period. On 23 March 2018, the applicant reported that while she is the primary carer, Mr B spends time with all three children when she visits and that they both help decide matters about the education and development of the children.
The evidence also indicates that the applicant and Mr B have presented themselves as being in a de facto relationship to real estate agents, medical professionals, to the Federal Circuit Court, to the Secretary and employers.
In the applicant’s tenancy application for the Salamander Bay property, completed prior to the lease agreement of 11 April 2017 being signed, the applicant listed her next of kin not living with her or other person to contact in a case of an emergency as Ms K, Mr B’s mother. She is described as being the applicant’s ‘mum-in-law’. Likewise, in the applicant’s undated antenatal record at Tamworth Hospital presumably completed prior to the birth of her daughter on 9 August 2017, the applicant’s ‘person to contact’ is listed as Ms K and is described as the applicant’s ‘mother-in-law’. Mr B is also recorded as the emergency contact listed in the applicant’s employer records with McDonalds Tamworth.
Regarding financial aspects of the relationship, the applicant and Mr B listed both their names on tenancy applications, and subsequently a lease agreement in respect of the Salamander Bay property.
On 21 January 2019, Mr B provided a statement that the real estate agent would not allow him to sign the lease on his own and insisted that the applicant also sign the lease as she would be staying there two nights per week. In the applicant’s Statutory Declaration dated 16 March 2020, the applicant indicated she was pressured into signing the lease despite not living there or intending to live there. The applicant again repeated this evidence at hearing. However, I note that Mr B’s tenancy application does state that he will be the only person signing the lease, but that the applicant and her two children were requested to be approved as residing at the property. Despite the applicant’s intention of only residing at the Salamander Bay property a few nights a week, the fact that the applicant signed the lease represents a major joint financial commitment with Mr B.
There is no other evidence of any joint ownership of real estate, major assets, liabilities, or bank accounts.
Considering the evidence in totality, I am convinced that the applicant and Mr B pooled resources in respect of the Salamander Bay property. The applicant had signed the lease, used the property as her address for various purposes and resided at the property for two or three nights per week (if that). They shared responsibility for her three children.
The applicant and Mr B did have a sexual relationship for at least some of the period from 11 April 2017 to 8 February 2019. This is evidenced by the birth of their daughter on 9 August 2017 and a Centrelink Mandatory Review form completed by the applicant on 23 March 2018, in which the applicant reported that she did have a sexual relationship with Mr B and that they were not free to form sexual relationships with other people; but this was no longer the case by November 2018.
Having regard to the totality of the evidence and each of the criteria under paragraphs 4(3)(a)-(e) of the Act, I am satisfied that the applicant was a member of a couple with Mr B from 11 April 2017 until 8 February 2019. The applicant and Mr B entered into a major financial commitment together being the lease for the Salamander Bay property, resided together at that property for two or three days per week, had a daughter together, shared responsibility for the applicant’s other two children, presented as being partnered to various third parties, and had an exclusive sexual relationship.
During the relevant period the applicant’s rate of youth allowance and parenting payment were calculated based on her not being a member of a couple. Debt calculations completed by the Secretary show that the applicant has been overpaid youth allowance in the amount of $4,992.85 during the period from 11 April 2017 to 8 August 2017; and parenting payment (single) in the amount of $20,475.99 during the period from 28 August 2017 to 12 November 2018. These calculations do not appear to be in dispute.
The overpayment of the above amounts constitutes legally recoverable debts under subsection 1223(1) of the Act.
The applicant’s earnings from McDonalds
During the period from 13 July 2010 to 3 April 2017 (relevant debt periods), the applicant’s rate of youth allowance and parenting payment were calculated based on the amount of income the applicant declared to the Secretary as part of her fortnightly reporting requirements.
It is not in dispute that the applicant’s earnings from McDonalds were “ordinary income” pursuant to subsection 8(1) of the Act.
On 11 April 2018, the Secretary received details of the applicant’s employment from McDonalds Tamworth and on 12 April 2018, the Secretary received details of the applicant’s employment from McDonalds Thornleigh. These documents revealed that the income the applicant had declared to the Secretary was significantly less than the actual income she had earned during the relevant debt periods. Based on the actual amount of ordinary income the applicant earned, as verified by McDonalds, debt calculations were completed by the Secretary. These calculations do not appear to be in dispute.
The overpayment amounts constitute legally recoverable debts under subsection 1223(1) of the Act.
Can the debts be waived or written off?
There are no grounds to write off the debt. The debt is legally recoverable, the applicant’s whereabouts are known, and she has capacity to repay the debt through deductions from her social security payments. The applicant is currently repaying her debts at a rate of $50 per fortnight withheld from her family tax benefit.
At hearing, the applicant advised that she suffered a workplace injury and has not worked since 2019. She advised she is currently receiving workers compensation.
The available evidence does not demonstrate that deductions from the applicant’s family tax benefit would cause her to be in severe financial hardship. It is also open for the applicant to re-negotiate the deduction amount with the Debt Management Team at Centrelink should her financial circumstances change. As such, at the time of hearing, the applicant had capacity to repay the debt and there are no grounds for the debt to be written off.
Section 1237A of the Act provides for waiver of the debt due to administrative error. Relevantly, subsection 1237A(1) provides:
(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.
There is no evidence that the debts arose due to sole administrative error. Rather, the debts have arisen as the applicant did not advise the Secretary of the correct amount of her employment income and did not advise that she was a member of a couple with Mr B during the relevant period.
Section 1237AAD of the Act provides for waiver of the debt due to special circumstances. Relevantly, it 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…;
(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.
In relation to the member of a couple debts, the Secretary accepts that the debt did not arise due to the applicant knowingly make false statements or failing to comply with a provision of the Act. The applicant provided a statement on 23 March 2018 outlining the complex nature of her relationship with Mr B.

However, despite receiving numerous section 68 notices, the applicant knowingly failed to comply with these notices and advise the Secretary of the correct amount of her income. The applicant knowingly made false statements in declaring the incorrect amounts of her employment income. The records indicate that the amount of income declared was consistently significantly less than the applicant’s actual income.
At hearing, the applicant said that she lived in a refuge up until the end of 2009 and from October 2010, she had her mail forwarded to her aunt’s house. The applicant said at hearing that she didn’t receive the forwarded mail from her aunt, and it was only when she finished year 12 of high school that she found out about her reporting obligations to Centrelink.
In a statutory declaration dated 16 March 2020, the applicant said, “I asked her [applicant’s aunt] about the Centrelink reporting as I wasn’t familiar with the process, she informed me I needed to report $200 a fortnight, no matter what I earnt as I was giving her rent and some of my earnings”. This evidence indicates that the applicant knew the income she was declaring was not the correct amount of income. The applicant’s debts arose as the applicant knowingly made false statements regarding her income, and therefore paragraph 1237AAD(a) of the Act is not satisfied.
Paragraph 1237AAD(a) of the Act is further not satisfied, as “another person” (the applicant’s ex-partner) made false statements to Centrelink. The applicant said at hearing and in written evidence that she was in an abusive relationship with her ex-partner from 2012. She said that he “did all of her reporting”, “he would see all her payslips” and “access her bank accounts without consent”. At hearing the applicant said that her ex-partner controlled everything. She never got her pay because “it went straight to her husband”. The evidence indicates the applicant’s reported income remained significantly less than her actual earnings for the relevant debt periods after 2012.
The term ‘special circumstances’ is not defined in the Act. What may amount to special circumstances has been considered in a number of cases in the Federal Court and in the Tribunal. It has been generally accepted by this Tribunal that special circumstances are those that are unusual, uncommon or exceptional, making the case markedly different from the usual run of cases.
In Beadle v Director-General of Social Security (1985) 60 ALR 225, the Full Court did not think it possible to lay down precise limits or rules to circumscribe the discretion of the decision maker when considering whether special circumstances exist. Rather, the Court said that what constitutes special circumstances in any particular case is a matter for the Departmental head having regard to the purpose for which the power is given. However, because no precise limits or rules can be set, whether or not a particular kind of circumstance could (not should) be considered special is not merely a matter for the administrative decision maker.
46.In Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25, Besanko J considered the observations in Beadle at first instance that special
circumstances are those that are “unusual, uncommon or exceptional.” His Honour opined at [33] that it:
… was not the intention of Parliament to confine the exercise of the discretion to
an exceptional case. There is less risk of overstatement if the words ‘unusual’ or
‘uncommon’ are emphasised.
Generally, in Hogan v Secretary, Department of Employment, Education and Workplace
Relations [2011] AATA 162 at [82] it was held that in determining whether “special circumstances” exist the Tribunal has “a broad discretion to respond to a wide variety of circumstances”.
The applicant contends her debts should be waived due to special circumstances which are her difficult upbringing; her relationship with her ex-partner, with whom she has two children, was characterised by domestic violence, and has resulted in family court proceedings; her medical conditions; and that she is struggling financially. While I accept that these circumstances are no doubt difficult for the applicant, they are not unusual, uncommon, or exceptional to amount to special circumstances that make it desirable to waive the applicant’s debts.
The applicant has provided medical evidence from Dr ‘A’, a general practitioner and Ms ‘H’, psychologist. The available medical evidence appears to suggest the applicant does not have a current diagnosis of a mental health condition. This is not sufficient to amount to special circumstances.
The applicant’s current financial circumstances do not amount to special circumstances in this case. The applicant is able to repay her debts through deductions from her family tax benefit, and these deductions can be negotiated with the Debt Management Team. The applicant is currently repaying her debts at a rate of $50 per fortnight deducted from her family tax benefit.
Finally, there is no evidence to support the proposition that it would be more appropriate to waive the applicant’s debts compared to writing off the debts. Paragraph 1237AAD(c) of the Act is not satisfied.
Decision
The decision under review is affirmed.

I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate
Dated: 17 June 2021

Date of hearing: 22 September 2020

Applicant: Self-represented

Solicitors for the Respondent: Dr S Thompson, Services Australia

[2021] AATA 1787

17 June 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Appeal

Date of hearing:	22 September 2020
Applicant:	Self-represented
Solicitors for the Respondent:	Dr S Thompson, Services Australia