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

Rush and Secretary, Department of Social Services (Social services second review) [2022] AATA 3931 (21 November 2022)
Division:GENERAL DIVISION
File Number(s): 2021/8938
Re:Stephen Rush
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

Decision
Tribunal:Senior Member Damien O’Donovan
Date:21 November 2022
Place:Canberra

The decision made on 4 November 2021 is varied as follows:
(a)The applicant was overpaid:
i.Newstart in the amount of $1448.20 for the period of 17 February 2012 to 1 January 2013; and
ii.For Carer Payment in the amount of $43,504.41 for the period of 2 January 2013 to 30 March 2020

(b)The amounts overpaid to the Applicant are debts owing to the Commonwealth under section 1223(1) of the Act and cannot be waived.

........................[sgd]....................................
Senior Member Damien O’Donovan
Catchwords
SOCIAL SECURITY – Newstart allowance and carer payment – debt raised to recover overpayments– debtor failed to disclose he was a member of a same-sex couple – whether whole or part of debt should be waived –whether special circumstances exist to warrant a waiver of the debt – whether debtor gave misleading responses to questions – whether debtor made honest mistake about his status based on advice prior to changes to the law concerning same-sex couples - debtor failed to comply with his statutory obligations – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975,
Social Security Act 1991, ss 1237AAD
Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008
Cases
Re Callaghan and Secretary, Department of Social Security (1996-97) 45 ALD 435
Secondary Materials
Guides to Social Policy Law: Social Security Guide
REASONS FOR DECISION
Senior Member Damien O’Donovan
21 November 2022
INTRODUCTION

Between 17 February 2012 to 1 January 2013 and 2 January 2013 to 29 April 2019 Mr Rush accumulated a debt to the Commonwealth as a consequence of being overpaid Commonwealth benefits - Newstart Allowance (Newstart) in the first period and a Carer Payment in the second period. The debts arose as a consequence of Mr Rush being paid those benefits at a single rate rather than as a member of a couple.
It is not in dispute that in the relevant periods Mr Rush was in a same-sex de facto relationship and he should have been paid benefits as a member of a couple.
The Administrative Appeals Tribunal (the Tribunal) conducted what is known as a Tier 1 review of Services Australia’s (the Agency) decision to recover the debt. On 4 November 2021 the Tier 1 Tribunal decided to affirm that decision (Tier 1 Review). The applicant exercised a right to seek review in the General Division of the Tribunal (Tier 2 Review).
Mr Rush seeks waiver of the debt under section 1237AAD of the Social Security Act 1991 (Cth) (the Act).[1]
[1] See Supplementary Statement of Facts, Issues and Contentions dated 17 June 2022 at [39]
He contends that the debt did not result wholly or partly from him knowingly making a false statement, a false representation or knowingly failing to comply with the Act and that there are special circumstances other than financial hardship alone that make it desirable to waive the debts.
I am not satisfied that the statutory preconditions which would allow me to waive the debt are present. Accordingly, I have affirmed the decision under review. My reasons for the decision are as follows.
STATUTORY PROVISIONS
Section 1223 of the Act provides a framework which establishes when a debt is due to the Commonwealth. There is no dispute that the requirements are satisfied in this case.
The Act also provides for a number of circumstances in which a debt may be waived or written off. In this case, Mr Rush contends that his debt should be waived under section 1237AAD which provides:
Section 1237AAD Waiver in Special Circumstances
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.
OUTLINE OF DISPUTE
The applicant seeks waiver of the debt on the basis that the debt arose as a consequence of an honest mistake. Mr Rush failed to pick up on a change in the social security law which recognised same-sex de facto relationships for the first time in 2009. He wrongly believed that his only option was to claim the single rate. In those circumstances, the applicant contends, it cannot be said that he knowingly made a false statement or false representation to secure the benefit. Further, the confusion generated by the change in the law regarding same sex relationships and the fact that he and his partner would suffer extreme financial hardship if the debt had to be paid, in combination, constitute special circumstances which justify the debt being waived.
The respondent contends that:
(a)The debt arose partly from the applicant knowingly make a false statement; and
(b)There are no special circumstances (other than financial hardship) which make it desirable to waive the debt.
EVIDENCE
The evidence before me consists of the T documents in these proceedings and in proceeding 2021/8865 as well as:
(a)Exhibit 1 – An email from Abbey Medley to Mr Rush dated 11 March 2022
(b)Exhibit 2 – Statement of Helen Bateman dated 3 May 2022
(c)Exhibit 3 – Statement of Melissa Nesbit dated 3 March 2022
(d)Exhibit 4 – A letter from Dr Sheahan Ranasinghe dated 10 March 2022
(e)Exhibit 4A – The attachment of the letter from Dr Sheahan Ranasinghe dated 10 March 2022
(f)Exhibit 5 – A letter titled ‘Your GP at Lyneham’ signed by Dr Sheahan Ranasinghe dated 10 March 2022
(g)Exhibit 6 – A letter from Nick Dennit dated 10 June 2021
(h)Exhibit 7 – Statement of financial circumstances in relation to Mr Rush and eleven attachments
(i)Exhibit 8 – Statement of financial circumstances of Mr Rush dated 14 January 2022
(j)Exhibit 9 – Documentation from Litigation Canberra dated 29 March 2022 which recalculates Mr Clark’s and Mr Rush’s debts
(k)Exhibit 10 - A uncompleted Claim for Newstart Allowance Form
(l)Exhibit 11 – A EANS document covering a period from 2018 to 2019
(m)Exhibit 12 – A set of bank statements provided by the applicant.
In addition to the documentary evidence, I also had the benefit of oral evidence given by Mr Rush and his partner Mr Clark.
FACTS
Set out below are my findings of fact. Where a finding is controversial I have referenced the evidence on which it is based. Where there is a conflict between the evidence of Mr Rush or Mr Clark and the documentary material, I have preferred the documentary material as I was not satisfied either Mr Rush or Mr Clark had reliable memories of their interactions with Centrelink or their state of mind at various times. Given the time periods which have elapsed this is understandable.
In 1998 the applicant and Mr Clark commenced a same-sex de facto relationship. That relationship continues to this day.
In the year 2000, Mr Rush attended a Centrelink office in Melbourne to obtain information regarding a payment he wished to apply for. He asked how he should classify his relationship with Mr Clark and was told that Centrelink didn’t have a category for same-sex couples and that Centrelink would treat Mr Clark and Mr Rush as ‘single’ for the purposes of calculating their Centrelink payments. That advice reflected the law as it was at the time.
On 1 July 2009 the Act was amended by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 (the Amending Act). The Amending Act changed the definition of partner to include same-sex couples. As a matter of law, at that point Mr Rush and Mr Clark became members of a couple for the purposes of the Act.
In February 2012 the Applicant applied for and commenced receiving Newstart at a single rate. There is no direct evidence available to me of the form originally filled out by Mr Rush to obtain Newstart but as a matter of common sense, Mr Rush must have submitted something to qualify for the allowance. Based on the material described below and the fact that Mr Rush began receiving his benefits at the single rate, I am satisfied that at some point when submitting his application, Mr Rush was asked a question about his relationship status and gave an answer which led Centrelink to believe that he was not in a relationship.
On 27 February 2012 Centrelink issued a reporting statement to Mr Rush entitled “Your Reporting Statement – Application for payment of Newstart Allowance”.[2] Question three of the Application stated:
Are you married or living in a registered or de facto relationship with someone of the opposite or same-sex (includes temporarily living away from a partner to improve study/job prospects)?[3]
[2] T6 pg 146
[3] Ibid pg 148
The Statement of 27 February 2012 also stated:
You must tell us if any of these things below have happened in the period Tuesday 28 February 2012 to Monday 12 March 2012
Family Circumstances
You married; are in or commenced an opposite or same-sex registered or de facto relationships, reconciled with a former partner, started living with someone as their partner.
On 27 February 2012 Centrelink sent Mr Rush a letter entitled “Income Statement”.[4] In the letter it included the following statement Customer Partnered – N. The letter also included the following text:
If you believe any of these details are incorrect, please contact us.
[4] T6 pg 142
Clearly something had been said or submitted that gave Centrelink the impression that Mr Rush was not partnered.
Mr Rush received similar letters (which included references to his reporting obligations), on various occasions including on 4 October 2012[5], 1 December 2012[6], 24 December 2012[7], 3 January 2013[8], 23 January 2013[9], 25 January 2013[10], 31 January 2013[11], 11 February 2013[12], 21 May 2013[13], 26 September 2013[14], 1 October 2013[15], 27 November 2013[16], 24 April 2014[17], 15 July 2014[18], 18 September 2014[19], 11 December 2014[20], 2 March 2015[21] and 11 September 2018.[22]
[5] T23 pg 227
[6] T28 pg 253
[7] T29, pg 255
[8] T 31 pg 268
[9] T34 pg 276
[10] T35 pg 278
[11] T36, pg 282
[12] T38 pg 286
[13] T41 pg 301
[14] T42 pg 303
[15] T43 pg 305
[16] T44 pg 307
[17] T47 pg 316
[18] T50 pg 334
[19] T51 pg 340
[20] T52 pg 342
[21] T53 pg 348
[22] T59 pg 396
Between 27 February 2012 and 14 January 2013 Mr Rush contacted Centrelink via telephone with regards to his Newstart payments. When asked whether he had anything to declare to Centrelink, including any updates as to his partner status, Mr Rush answered “No”.[23]
[23] See T93 pg 684, 685, 687, 692, 707, 710, 715, 717, 733
On 20 March 2012 Mr Rush attended a face-to-face Employment Services Assessment in which a written report was produced.[24] During the Assessment, Mr Rush’s medical conditions, barriers to work and work capacity were discussed. The Report notes under Barriers and interventions summary:
[24] T9 pg 39
Stephen’s biggest barriers to employment are his depression, anxiety and PTSD symptoms. He cares for a friend that he lives with and he has some financial issues.
Additional Comments:
Stephen reported living in temporary accommodation (a holiday rental) with his friend who he cares for.[25]
[25] T9 pg 43
Mr Rush attended a further Employment Services Assessment on 14 November 2012[26] in which a report was produced. The writer noted:
Mr Rush reported that he is currently living in stable accommodation with his friend whom he cares for (received carers allowance). Mr Rush reported that he has a current driver’s licence and has access to his friend’s vehicle.[27]
[26] T27
[27] T27 pg 251
The reference to his partner Mr Clark as his ‘friend’ is false and misleading.
On 26 March 2012 Centrelink sent Mr Rush a letter entitled “Your Newstart Allowance” which detailed his payments for a specific period. The letter also included information relating to Mr Rush’s reporting obligations and enclosed a reporting statement. The letter stated that Mr Rush ‘must report on the due date shown on the enclosed form or your payment may be delayed by the holidays. You must include an estimate of earnings and other changes for the period covered by the form. Centrelink must be notified of any changes within 14 days’.[28] The letter also stated the following:
[28] T10 pg 163
What is Income
Income has a very broad meaning for social security purposes. Some examples of income earnings from employment (including fringe benefits)… If you have a partner, that person’s income may affect your payment.
Mr Rush received similar letters (which included references to his reporting obligations), as referenced above, on various occasions including on 1 October 2012[29] and 25 October 2012.[30]
[29] T22 pg 225
[30] T25 pg 235
On 28 March 2012 Centrelink sent Mr Rush a letter entitled “Your Centrelink Payment”[31] which enclosed a reporting statement and a Centrelink statement. In the Reporting Statement[32] it detailed, amongst other things, the following:
[31] T11 pg 172
[32] T11 pg 175
This Reporting Statement is an information notice given under social security law. You have an obligation to provide Centrelink with all the information that is relevant to your payment. Giving false or misleading information is a serious offence.
If any of your circumstances have changed:
You must tell us of your new circumstances within 14 days of the change occurring. There is important information about what you must tell us on the back this letter.
Changes you must tell Centrelink about
Family circumstances
You marry; are in or commence a registered or de facto relationship (either opposite or same-sex); reconcile with a former partner or start to living with someone as their partner; separate from your partner or your partner dies.
Mr Rush received similar letters (which included references to his reporting obligations), as referenced above, on various occasions including on 18 September 2012[33], 5 November 2012[34], 14 January 2013[35] and 28 September 2018[36].
[33] T18 pg 212
[34] T26 pg 239
[35] T33 pg 271
[36] T60 pg 398
On 12 September 2012 Mr Rush contacted Centrelink regarding a change of address/accommodation details for his carer payment.[37] Mr Rush reported the following living arrangements to be effective from 27 August 2012 including, amongst other things:
Moved in:
Name: Scott Clark
Relationship: Friend/Housemate
Shared accommodation at another address with this person? Yes
Lived together as a couple? No
Considered a couple when participating in joint activities? No
[37] T93 pg 700
On 17 September 2012 Mr Rush signed and filled out a form entitled “Mod iA – Income and Assets”. At Question 5, the form asked whether Mr Rush had a partner. Mr Rush answered no.[38] When signing the form, Mr Rush declared that the information he had given on the form was complete and correct and acknowledged that giving false or misleading information was a serious offence.[39] On the same date, Mr Rush signed and filled out a form entitled “SCI – Seasonal, Contract and intermittent work details”.[40] Mr Rush wrote, in the section which stated “Partner’s name” “n/a”. At question 3, the form asked whether Mr Rush had a partner. Mr Rush answered no.[41]
[38] T14 pg 189
[39] T14 pg 198
[40] T15 pg 199
[41] T15 pg 200
On 17 September 2012 Mr Rush signed and filled out a form entitled “Customer Declaration Form – Newstart Allowance”.[42] In the form, Mr Rush’s relationship status was noted as “Single”. Mr Rush declared that the claim form for Newstart Allowance had been read by him and the information he had given in the claim form is complete and correct.[43]
[42] T16 pg 201
[43] T16 pg 205
On 24 September 2012 Mr Rush signed and filled out a form entitled “Rent Certificate”.[44] At question 8, Mr Rush was asked whether he shared his accommodation with other people. Mr Rush recorded he lived with Mr Scott Clark and described their relationship as “friend”.[45] On the form, partner was defined as Partner includes married, registered partner or de facto of the opposite-sex or same-sex.[46]
[44] T21 pg 222
[45] T21 pg 223
[46] T21 pg 224
On 18 October 2012 Mr Rush signed and filled out a form entitled “Rent Certificate”.[47] At question 8, Mr Rush was asked whether he shared his accommodation with other people. Mr Rush recorded he lived with Mr Scott Clark and described their relationship as “friend”.[48]
[47] T24 pg 233
[48] T24 pg 234
On 2 January 2013 Mr Rush made a claim for Carer Payment.[49] In the application, Mr Rush noted Mr Clark would be the care receiver. In the form, Mr Rush was required to provide responses to various questions in relation to his care to Mr Clark – which I have noted below:
[49] T30 pg 259
What is your relationship to Mr Scott D Clark (e.g. daughter, mother, grandmother, family friend)?
Friend
Do you personally provide additional care and attention to Mr Scott D Clark because of their disability or condition?
Yes
How many days each week do you provide this care?
7 days each week
When did you start to provide this care?
2004
Do you provide constant care to Mr Scott D Clark in their home?
yes[50]
[50] T30 pg 266
On 11 February 2013 Mr Rush was given notice by Centrelink that his Newstart Allowance had been cancelled due to receiving a payment from Centrelink or another Government Department.[51] The notice stated that his Newstart Allowance had been cancelled from 2 January 2013.
[51] T37 pg 284
On 11 February 2013 Centrelink sent Mr Rush a letter entitled “Your Carer Payment”.[52] The letter stated the following:
[52] T39 pg 288
What you must tell us
You must tell us within 14 days (28 days if residing outside Australia) if any of the changes listed below happen or are likely to happen to you and/or your partner (if you have one) or the person(s) you care for.
Household: Tell us if you marry, are in or commence a registered or de facto relationship (either opposite or same sex); reconcile with a former partner or start living with someone as their partner.[53]
[53] T39 pg 290
Mr Rush received similar letters (which included references to his reporting obligations), as referenced above, on various occasions including on 11 March 2014[54], 15 July 2014[55] and 17 June 2019[56].
[54] T46 pg 313
[55] T50 pg 336
[56] T63 pg 406
On 6 May 2013 Mr Rush signed and filled out a form entitled “Mod F – Business details”.[57] At the start of the form, it stated the definition of partner:
For the Australian Government Department of Human Services purposes a person is considered to be your partner if you and the person are living together, or usually live together, and are:
Married, or
In a registered relationship (opposite-sex or same-sex), or
In a de facto relationship (opposite-sex or same-sex)
We consider a person to be a de facto relationship from the time they commence living with another person as a member of a couple.
We recognise all couples, opposite-sex and same-sex.[58]
[57] T40 pg 291
[58] T40 pg 291
On 3 March 2014 Mr Rush signed and filled in a form entitled “Accommodation Certificate”.[59] Mr Rush declared he did not share his accommodation with other people.
[59] T45 pg 310
On 12 May 2014 Mr Rush contacted Centrelink regarding his change of address/accommodation details for carer payment.[60] Mr Rush reported the following living arrangements to be effective from 30 April 2014 including, amongst other things:
Moved in:
Name: Scott Clark
Relationship: Friend/Housemate
Shared accommodation at another address with this person? Yes
Lived together as a couple? No
Considered a couple when participating in joint activities? No
[60] T 93 pg 763

On 19 May 2014 Mr Rush signed and filled in a form entitled “Rent Certificate”.[61] At question 8, Mr Rush was asked whether he shared his accommodation with other people. Mr Rush recorded he lived with Mr Scott Clark and described their relationship as “friend”.[62]
[61] T48 pg 318
[62] T49 pg 319
On 16 December 2014 Mr Rush signed and filled in a form entitled “Rent Certificate”.[63] At question 8, Mr Rush was asked whether he shared his accommodation with other people. Mr Rush recorded he lived with Mr Scott Clark and described their relationship as “friend”.
[63] T53 pg 344
On 17 May 2019 Mr Rush contacted Centrelink regarding his change of address/accommodation details for carer payment.[64] The Applicant reported the following living arrangements to be effective from 3 May 2019 including, amongst other things:
The customer is sharing
The following sharers have moved in:
Name: Scott Clark
Start date: 03.05.2019
Relationship: other l am his carer
[64] T93 pg 782
On 3 September 2019 Centrelink sent a letter to Mr Rush notifying him that his Carer Payment had been cancelled at his request.[65]
[65] T 65 pg 416
On 2 March 2020 Mr Rush submitted a Claim form for Carers Payment.[66] In the form, Mr Rush gives inconsistent details as to his relationship status with Mr Clark. When asked his relationship status, Mr Rush stated that he had never been married or lived with a partner.[67] When asked about his shared accommodation status with Mr Clark, Mr Rush stated his relationship with Mr Clark was “Boyfriend/Girlfriend”. Mr Rush further stated he had not previously lived as a member of a couple, had joint financial commitments or was regarded as couple with Mr Clark by others. Further, when asked about his Caring Arrangements Mr Rush provided the following response:
Lives with me – Scott D Clark lives with me in the same home address
Relationship to care receiver – other relation
Providing care – I provide care to Scott D Clark from 1 January 1998 for 7 days per week.
[66] T 74 pg 437
[67] T74 pg 438
On 31 March 2020 Mr Rush filled in and signed a Centrelink form entitled ‘Partner details’.[68] This form was also signed by Mr Clark. In this form, Mr Rush disclosed that he had been in a de facto relationship with Mr Clark since 30 June 1998.
[68] T77 pg 451
On 11 May 2021 Centrelink sent Mr Rush a letter which notified him that he had been overpaid Newstart and Carer Payment due to him receiving the payments at a single, rather than a partnered rate.[69]
[69] T82 pg 83
Having regard to the notices, letters and forms filled in and signed by Mr Rush over the last decade, I am satisfied that Mr Rush did not inform Centrelink of his correct partner status or that he was in a de facto relationship. The first time Mr Rush was completely honest in his disclosure was on 31 March 2020, when he and Mr Clark submitted the “Mod P – Partner Details” form to Centrelink.
At the hearing it was not in dispute that Mr Rush and Mr Clark were members of a de facto couple from 1998.
Mr Rush’s de facto relationship with Mr Clark, for the purposes of the Act, was recognised in law after the amendments in the Same-sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 which received assent on 1 July 2009.
Following the application for Tier 2 review the respondent was provided with more details concerning Mr Rush’s earnings over the period when he was receiving Carers Payment. During the period 28 August 2018 to 30 March 2020, the applicant earned more income from his employer Able Australia than he declared.[70] The result was that the applicant’s debt increased to $43,504.41
[70] See payslips at ST9 and calculations at ST2 (2021/8938)
Was Mr Rush overpaid his Newstart and Carers Payment?
The Tribunal is satisfied that Mr Rush received an overpayment of his Newstart and Carers Payment as a result of not declaring his relationship status from 17 February 2012 to 1 January 2013 and 2 January 2013 to 29 April 2019 respectively. He was overpaid because his rate of payment during that period did not take into account his status as a member of a couple. Mr Rush also failed to accurately declare his income from Able Australia in the period 28 August 2018 and 30 March 2020. There was evidence given by Mr Rush that he always declared accurately his income from the relevant employer, Able Australia, but having reviewed the payslips and bank records provided I am satisfied that is not the case. When the overpayment is recalculated taking Mr Rush’s additional income I am satisfied that Mr Rush is liable for his Newstart and Carers Payment debts in the sum of $1,448.20 in respect of his Newstart debt for the period of 17 February 2012 to 1 January 2013 and the sum of $43,504.41 for the period of 2 January 2013 to 30 March 2020 in respect of his Carer Payment debt.
Is the amount overpaid a debt owed to the Commonwealth?
Mr Rush was not entitled to the rate of Newstart and Carer Payment he received. As Mr Rush has been paid an amount of a social security payment that he was not entitled to obtain, pursuant to section 1223(1) of the Act, the amount of the payment is a debt due to the Commonwealth. In applying the correct rate calculator found in section 1064(4) of the Act, and accounting for Mr Rush’s de facto status, for the entirety of the debt period, I am satisfied Mr Rush was overpaid $1,448.20 in respect of his Newstart debt for the period of 17 February 2012 to 1 January 2013 and the sum of $43,504.41 for the period of 2 January 2013 to 30 March 2020 in respect of his Carer Payment debt and that such an amount is a debt due to the Commonwealth under subsection 1223(1) of the Act.
Should the debt be waived?
The Act contains provisions which allow, in certain circumstances, for a debt that is due to the Commonwealth to be waived or written off. Mr Rush seeks to have it waived.
Section 1237 of the Act allows a debt owed to the Commonwealth to be waived. When a debt is waived, the debt that is owed is expunged and there is no longer a debt to recover. A waiver can be authorised for a number of reasons, relevantly in this matter in special circumstances (s1237AAD).
Section s1237AAD provides as follows:
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a) The debt did not result wholly or partly from the debtor or another person knowingly:
(i)Making a false statement or a false representation; or
(ii)Failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b) There are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) It is more appropriate to waive than to write off the debt or part of the debt.
In Re Callaghan and Secretary, Department of Social Security (1996-97) 45 ALD 435 at [48] discussed the meaning of ‘knowingly’, which is not defined in the Act, in which the Tribunal observed:
There is nothing in section 1237AAD which suggests the word “knowingly” should be given any meaning other than that a person has actual knowledge, rather than constructive knowledge, that he or she is making a false statement or representation or that he or she is failing or omitting to comply with a provision of the Act. That actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement or the act or omission.
Mr Rush contended that the debt should be waived because he had not knowingly made any false statements which resulted in the debt. In his evidence he stated that he did not know of the change in the law which occurred in 2009 and so believed that for Centrelink purposes he and Mr Clark were single.
I do not accept this evidence. I am satisfied that the applicant did knowingly make false statements to Centrelink and those false statements are the direct cause of the debt to Centrelink.
One clear early example of false information being provided occurred on 12 September 2012. Mr Rush contacted Centrelink regarding a change of address/accommodation details for his payment.[71] Mr Rush described Mr Clark as a friend/housemate and positively denied that they were living as a couple. That information was false and, given that Mr Rush conceded that he and Mr Clark were a de facto couple from 1998, Mr Rush knew at the time he made the statement that it was false. Consequently, the preconditions for waiving the debt are not present. There is clear evidence that Mr Rush misrepresented his relationship to Mr Clark as early as March 2012 where he described him as a ‘friend’ rather than as his partner, and similar misleading statements were repeated over the years until March 2020. I am satisfied that these statements were knowingly false.
[71] T93 pg 700
The applicant conceded as much while giving evidence when his explanation for failing to disclose his relationship to Centrelink changed from his earlier claims that the reason for non-disclosure was that he did not think same sex relationships were recognised in 2012, to claims that he feared discrimination and social retribution based on his sexual preference. This shift in his evidence confirms that the withholding of the information about his relationship with Mr Clarke was a deliberate choice.
I am satisfied that the applicant knew he was misleading Centrelink when he described Mr Clark as a friend and denied that they were a couple. I am satisfied that he claimed benefits on a basis that he knew to be false. In these circumstances it is unnecessary to consider whether there are special circumstances which make it desirable to waive the debt - the Tribunal cannot waive the debt pursuant to s1237AAD.
Decision
For the reasons outlined above, the Tribunal decides:
The decision made on 4 November 2021 is varied as follows:
(a)The applicant was overpaid:
i.Newstart in the amount of $1448.20 for the period of 17 February 2012 to 1 January 2013; and
ii.For Carer Payment in the amount of $43,504.41 for the period of 2 January 2013 to 30 March 2020
(b)The amounts overpaid to the Applicant are debts owing to the Commonwealth under section 1223(1) of the Act and cannot be waived.
.

I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien O’Donovan.

.............................[sgd]...........................................
Associate
Dated: 21 November 2022

Date(s) of hearing: 1 & 14 July 2022

Applicant: Self-represented

Solicitor for Respondent:
Dr Stephen Thompson, Sparke Helmore & Ms Amy Simpson, Services Australia

[2022] AATA 3931

21 November 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Standing

Date(s) of hearing:	1 & 14 July 2022
Applicant:	Self-represented
Solicitor for Respondent:	Dr Stephen Thompson, Sparke Helmore & Ms Amy Simpson, Services Australia