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

This matter concerned an appeal to the Administrative Appeals Tribunal regarding a debt raised by the Department of Social Services to recover overpayments of Newstart allowance and carer payment. The applicant, Mr. Rush, had failed to disclose his same-sex de facto relationship with Mr. Clark, which commenced in 1998. The debt arose from payments made to Mr. Rush at a single rate, despite the law changing in 2009 to recognise same-sex couples as partners for the purposes of social security payments.

The Tribunal was required to determine whether the whole or part of the debt should be waived, and if special circumstances existed to warrant such a waiver. The Department contended that the debt arose partly from the applicant knowingly making a false statement and that no special circumstances, other than financial hardship, justified waiving the debt. The applicant argued that he had received advice in 2000 that Centrelink had no category for same-sex couples and would treat them as single, and that this advice influenced his subsequent actions.

The Tribunal found that while the advice received in 2000 reflected the law at that time, the law changed significantly in 2009. Despite this change, Mr. Rush applied for and received Newstart allowance at a single rate in 2012, and subsequently received carer payment. The Tribunal was satisfied, based on documentary evidence including Centrelink's reporting statements and income statements, that Mr. Rush was asked about his relationship status and provided an answer that led Centrelink to believe he was not in a relationship. The Tribunal concluded that Mr. Rush knew he was misleading Centrelink and claimed benefits on a basis he knew to be false.

Consequently, the Tribunal determined that the debt could not be waived under section 1237AAD of the relevant Act, as the applicant had knowingly misled Centrelink. The decision made on 4 November 2021 was varied to confirm the overpayments of Newstart allowance and carer payment, totalling $1448.20 and $43,504.41 respectively, which were debts owing to the Commonwealth and could not be waived.