SYKG and Secretary, Department of Social Services (Social services second review) - [2020] AATA 1912

SYKG and Secretary, Department of Social Services (Social services second review) [2020] AATA 1912 (24 June 2020)
Division:GENERAL DIVISION
File Number: 2019/0552
Re:SYKG
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:24 June 2020
Place:Perth

The Tribunal sets aside the Reviewable Decision and substitutes a new decision that the debt is to be waived under s 1237AAD of the Social Security Act 1991 (Cth) from
30 November 2017 until the end of the Debt Period.
.............[sgd]...........................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
SOCIAL SECURITY – cancellation of disability support pension – whether disability support pension should have been suspended or cancelled – whether overpayment of disability support pension – debt owed to the Commonwealth – recovery of a debt – whether Applicant should be required to repay the overpaid amount – whether debt attributable solely to administrative error of Centrelink – waiver for sole administrative error – whether special circumstances – whether debt should be written off – Applicant’s spouse received lump sum compensation payment deposited into joint bank account – whether Applicant advised Centrelink of wife’s compensation payment – monies in bank account exceeded asset limit – two month delay in investing compensation payment into special superannuation fund – superannuation fund an exempt asset – special circumstances established – Reviewable Decision set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 19D(2)(a), 37, 43(1)
Social Security Act 1991 (Cth) – ss 11, 1064, 1064-A2, 1118(1), 1118(1)(f), 1184K, 1223(1), 1236, 1237A, 1237A(1), 1237AAD
Social Security (Administration) Act 1999 (Cth) – s 68(2), 80, 94, 94(1)(a), 94(1)(b), 94(1)(c), 94(1)(d), 94(1)(e)

CASES
Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9
Beadle and Director-General of Social Security (1984) 6 ALD 1
Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531
Davy and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 693
Dranichnikov v Centrelink (2003) 75 ALD 134
Re Gerhardt and Secretary, Department of Employment, Education and Training [1996] AATA 173
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Harfouche and Secretary, Department of Social Services [2019] AATA 2484
Mentink v Secretary, Department of Social Services (2016) 238 FCR 1
RBJS and Secretary, Department of Jobs and Small Business [2018] AATA 1625
Ryde v Secretary, Department of Family and Community Services [2005] FCA 886
Scott v Secretary Department of Social Security (2000) 65 ALD 79
Secretary, Department of Family & Community Services v Sekhon (2003) 73 ALD 41
Secretary, Department of Social Security and Hales (1998) 82 FCR 154
Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones (2012) 89 ATR 267
Ward and Secretary, Department of Families and Community Services [2000] AATA 212

REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
24 June 2020
OVERVIEW

The Applicant is seeking review of a decision of the Social Services and Child Support Division (AAT1) of the Administrative Appeals Tribunal (Tribunal) made on
18 January 2019. The Authorised Review Officer’s (ARO) decision, as affirmed by the AAT1 on 18 January 2019, is the Reviewable Decision that is currently before the Tribunal.
The AAT1 decision affirmed a decision of an ARO dated 12 October 2018 (with subsequent reasons for the ARO’s decision dated 14 November 2018).
The ARO affirmed a Centrelink decision to raise and recover a disability support pension (DSP) debt of approximately $10,579 for the period 20 September 2017 to 15 May 2018 (the Debt Period) on the basis that the Applicant was not entitled to DSP during the Debt Period.
ISSUES
The issues that require determination by the Tribunal are:
(a)Was there an overpayment of DSP to the Applicant during the Debt Period?
(b)Should the Applicant’s DSP have been suspended rather than cancelled?
(c)If there was an overpayment of DSP to the Applicant, should he be required to repay the overpaid amount? This requires a consideration of whether the debt can be:
(i)waived due to sole administrative error (s 1237A of the Act);
(ii)waived due to the existence of special circumstances (s 1237AAD of the Act); or
(iii)written off pursuant to s 1236 of the Act.
After considering these issues, the Tribunal will then decide what the correct or preferable decision in this application should be under s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
MATERIAL BEFORE THE TRIBUNAL
The application was heard by Member Fitzgerald on 17 September 2019. The Applicant was self-represented. The Secretary of the Department of Social Services (Secretary) was represented by Ms Hinwood. Member Fitzgerald ceased to be a member of the Tribunal on 5 March 2020, and at that time she had not delivered a decision with respect to this application.
By a direction made on 18 March 2020, pursuant to s 19D(2)(a) of the AAT Act, the Tribunal was reconstituted to comprise Senior Member Dr M Evans-Bonner.
The parties attended a telephone directions hearing before the Senior Member on

26 March 2020 to discuss how the application should proceed. The Applicant was concerned to ensure that the Tribunal had copies of the case law that he handed up to the Member at the hearing, and to confirm the exhibits before the Tribunal. With the consent of the parties, it was directed that, following written confirmation of the case law and exhibits being received from the parties, the application would be determined by the Senior Member on the basis of the transcript of the 17 September 2019 hearing and the documents that were admitted into evidence at that hearing.
The case law handed up at the hearing by the Applicant was:
(a)Mentink v Secretary, Department of Social Services
(2016) 238 FCR 1;

[2016] FCAFC 39;
(b)Harfouche and Secretary, Department of Social Services (Social Services Second Review) [2019] AATA 2484; and
(c)RBJS and Secretary, Department of Jobs and Small Business (Social Services Second Review) [2018] AATA 1625.
The materials admitted into evidence at the hearing were:
(a)a written submission from the Applicant, a letter from the Applicant’s wife’s general practitioner (GP), a letter from the Applicant’s GP, an email from a financial advisor, an Australian Tax Office (ATO) Income Tax Notice of Assessment for the year ended 30 June 2018, an ATO electronic lodgement declaration, two medical receipts for the Applicant’s wife and a copy of a bank balance enquiry receipt (Exhibit A1);
(b)an email from the Applicant dated 5 April 2019 attaching two letters from Centrelink dated 31 August 2017 and 6 September 2017 (Exhibit A2);
(c)statutory declaration (one page) from a friend of the Applicant’s dated 10 July 2019 (Exhibit A3);
(d)section 37 documents (T-documents), numbered T1 to T25, comprising 271 pages, filed with the Tribunal on 6 March 2019 (Exhibit R1); and
(e)the Secretary’s Statement of Facts, Issues and Contentions, dated 9 August 2019 (Exhibit R2).
RELEVANT FACTS AND EVIDENCE
The Applicant has been receiving DSP since 8 September 2000 (T25, page 231).
The Applicant’s wife had a serious motor vehicle accident in 2015 rendering her totally and permanently disabled (see Applicant’s statement and letter from Applicant’s wife’s GP in Exhibit A1). On 21 August 2017, the Applicant’s wife settled a compensation claim by consent where she was awarded a settlement sum of $1,050,000 (T6, pages 49-50).
A Centrelink computer record dated 28 August 2017 records that Centrelink received information from the Insurance Commission about his wife’s compensation payment. It further records a conversation with the Applicant’s wife where details of the date at which the Applicant’s wife became incapacitated and the lump sum compensation payment were discussed (T24, page 226).
At the hearing the Applicant’s evidence was that either he or his wife telephoned Centrelink about her compensation payment on 28 August 2017. He did not recall whether he made the phone call, or whether his wife did (transcript, page 11). As the relevant Centrelink computer record is in the name of the Applicant’s wife, with her customer reference number, the Tribunal finds that the conversation was most likely between Centrelink and the Applicant’s wife.
On 29 August 2017, details of the compensation payment were sent to Centrelink by the Applicant’s wife’s lawyers by facsimile (T6, page 49-50; transcript, page 8).
On 31 August 2017, Centrelink wrote to the Applicant’s wife stating that: “[w]e have been advised that you are entitled to receive a lump sum compensation payment” of approximately $10.5 million, and advising her that she had a preclusion period during which she was not entitled to income support from Centrelink. Centrelink advised the Applicant’s wife that monies received during this preclusion period must be repaid (Exhibit A2).
A Centrelink computer record for the Applicant’s wife records that a telephone call was made to Centrelink on 6 September 2017 to enquire about the preclusion period. The record shows the compensation was incorrectly recorded as being approximately $10.5 million and was corrected (T24, page 226). A letter dated 6 September 2017 was then sent to the Applicant’s wife with the correct sum of compensation being stated, and containing similar advice about the preclusion period, including that monies received during this preclusion period must be repaid (Exhibit A2).
On 20 September 2017, an amount of approximately $950,250 was deposited into a bank account held jointly by the Applicant and his wife (T20, page 128).
On 30 November 2017, a superannuation account was established in the name of the Applicant’s wife (T7, page 51). The sum of $700,000 was deposited into the superannuation account on the same day (T20, page 159). The establishment of this superannuation fund required formal financial advice of a “complex” nature, and the Applicant and his wife were advised that the time frame for contributing the funds to superannuation was 90 days upon receipt of payment (see email from financial advisor in Exhibit A1).
A Centrelink computer record for the Applicant states that the Applicant contacted Centrelink on 4 December 2017 regarding a change in his income and assets due to his shareholdings (T24, page 208). The Applicant stated at the hearing that he was following the advice of his accountant, who said that he needed to advise Centrelink of his share trading because he had made over 50 trades (transcript, page 13; Applicant’s statement in Exhibit 1). This record documents that the Applicant holds several shares in various companies, as well as owning a half share in two motor vehicles (with his wife owning the other half share). The Applicant agreed under cross-examination that there was no evidence of the compensation money in the joint bank account within this record (transcript, page 13).
A further Centrelink computer record for the Applicant shows that he made a general enquiry about his DSP on 13 December 2017. The entry contains minimal information regarding the reason for the telephone call but does state that further medical evidence will be provided from another specialist (T24, page 210).
The Applicant completed a business details form, dated 27 December 2017, declaring his share trading (T9, pages 56-66).
Centrelink sent the Applicant a letter dated 23 March 2018 requesting bank account statements and records of all transactions for the three months prior to 4 December 2017, and the latest statement of the Applicant’s shareholdings (T11, page 71).

This correspondence appears to be a follow up from the Applicant’s phone call to Centrelink regarding his share trading on 4 December 2017 and Centrelink’s receipt of his business details form. A related computer record notes that the Applicant had advised Centrelink on 4 December 2017 of approximately $16,000 worth “of new shares but [with] no explaination [sic] of where [the] funds have come from” (T24, page 212).
In response, the Applicant provided bank statements to Centrelink which showed the deposit of approximately $950,250 (T20, pages 128) from his wife’s compensation settlement.
On 29 May 2018, Centrelink sent the Applicant a letter advising him that he was no longer eligible for DSP because the combined assets of the Applicant and his partner were above the allowable limit (T12, page 73). The Applicant’s DSP was cancelled with effect from

20 September 2017 (T25, page 231).
Additionally, on 27 September 2018, Centrelink sent the Applicant a letter to raise and recover a DSP debt for an overpayment of DSP in the amount of approximately $3,079 for the Debt Period (T14, page 78).
On 10 October 2018, the Applicant contacted Centrelink to seek a review of the decision of 27 September 2018 (T24, page 219). However, in a letter dated 12 October 2018,

a manager in the (then) Department of Human Services decided to increase the debt to approximately $10,579 on the basis that the Applicant had a nil entitlement to DSP during the Debt Period due to his assets (T16, page 81; see T23 for calculations of the debt).
On 1 November 2018, the Tribunal received the Applicant’s application seeking a review of the decision of the ARO dated 12 October 2018 by the AAT1 (T17, pages 82-87).
On 14 November 2018, an ARO provided a statement of reasons for the decision of

12 October 2018 to the Applicant (T18, pages 88-92).
The AAT1 affirmed the decision of the ARO on 18 January 2019 (T2, pages 3-8).
On 1 February 2019, the Applicant lodged an application for review in the General Division of the Tribunal (AAT2) (T1, pages 1-2).
SUBMISSIONS
Submissions made at the hearing
The Tribunal has reviewed the transcript of the hearing of 17 September 2019. It will now provide an overview of the parties’ submissions made at the hearing.
The Secretary made the following submissions at the hearing (transcript, pages 5-6; 19-22; see also Exhibit R2):
(a)The Applicant received payments of DSP to which he was not entitled during the Debt Period. This overpayment was a debt to the Commonwealth that must be recovered.
(b)The Applicant’s DSP was correctly cancelled because the Applicant failed to advise Centrelink of the change in his income and assets (the $950,250 in the joint bank account of the Applicant and his wife) within the required seven day period. This meant that the combined assets of the Applicant and his wife exceeded the assets value limit and that he was no longer qualified for DSP.
(c)The debt is fully recoverable because there is no basis for it to be written off or waived under the provisions of the relevant legislation. Specifically, the Secretary contended that there was no evidence of any administrative error by Centrelink, there were no special circumstances and none of the statutory criteria for write off applied.
The Applicant made the following submissions at the hearing (transcript, pages 7-9; 15-18; 22):
(a)Centrelink had been notified of his wife’s compensation payment on three occasions with respect to his wife’s Centrelink account. These occasions were: the telephone conversation on 28 August 2017; the facsimile copy of the details of the Applicant’s wife’s settlement received by Centrelink on 29 August 2017; and the phone call to Centrelink on 6 September 2017 where the error in the amount of his wife’s compensation was corrected. He stated that Centrelink had “three chances to link our accounts and they [sic] error led to failure to record on my account” (transcript, page 9). Therefore, he did not think that he needed to notify Centrelink again because he believed that they had already been notified through correspondence regarding his wife’s Centrelink account.
(b)The compensation monies were intended to be put into a special superannuation fund for permanently disabled people to pay for his wife’s future living and medical costs. However, this required specialist financial advice and took approximately two months to establish. The financial advice received was that the Applicant’s wife had a period of 90 days from receipt of the payment to invest the money. He believed he was still entitled to DSP, notwithstanding the compensation monies paid to his wife.
(c)The Applicant agreed that his DSP was not payable from 20 September 2017, but only until the sum of $700,000 was put into the Applicant’s wife’s superannuation fund on 30 November 2017. He argued that the amount of the first debt raised, being approximately $3,000, was the correct amount of the debt because it reflected that period, and that he was entitled to DSP after the monies went into superannuation.
(d)The Applicant argued that Centrelink should not have cancelled his DSP because he was still entitled to it. Instead, he argued that in accordance with s 80 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act), Centrelink should have suspended his entitlements during this period (20 September 2017 to 30 November 2017), after which his entitlements should have been restored.
In support of his submission outlined in paragraph [34](d) above, the Applicant cited a passage from the case of Mentink v Secretary, Department of Social Services (2016)

238 FCR 1, 13 [49] (Mentink). This passage concerned the construction of s 80 of the Administration Act regarding whether it was open to the Tribunal to affirm a decision to suspend, as opposed to cancel, an age pension. The Full Federal Court stated:
As to the point of construction, s 80 is expressed in terms which might suggest that, irrespective of whether the decision-maker decides that the person was not qualified for the payment or that the payment was not payable, she or he has the option of either cancelling or suspending a payment. However, we consider that, sensibly read, the intention was that a payment would be cancelled where the person was not qualified for the payment, and suspended where the person was qualified but the payment was nonetheless not payable in the circumstances.
The Applicant also referred to two Tribunal decisions which applied Mentink but did not make specific submissions about them. The first was Harfouche and Secretary, Department of Social Services [2019] AATA 2484 [47] (Harfouche), where the Tribunal agreed with the Secretary’s submission that:
…the preferable decision would be that Mr Harfouche’s payment should have been suspended rather than cancelled, and that the Tribunal could terminate the suspension from the date Mr Harfouche complied with the Department’s notice and provided the required forms – 7 December 2016.
The second decision referred to by the Applicant was RBJS and Secretary, Department of Jobs and Small Business [2018] AATA 1625 (RBJS). The reference to Mentink is contained in paragraph [37] of RBJS which states:
The question of whether a payment should be cancelled rather than merely suspended under section 80 of the Administration Act was considered in Mentink v Secretary, Department of Social Services [2016] FCAFC 39; 238 FCR, in which the Court stated at [49] that the intention of section 80 ‘was that a payment would be cancelled where the person was not qualified for the payment, and suspended where the person was qualified but the payment was nonetheless not payable in the circumstances.’
However, after applying Mentink, the Tribunal in RBJS concluded that the decision to cancel the Applicant’s Newstart Allowance was correct because she failed to contact the employment services provider four weeks after she missed an appointment with them.
Further submissions after the hearing

On 8 May 2020, the Tribunal sought further submissions from the parties. This was in part because, from the Tribunal’s view of the transcript, the Applicant had made submissions based upon several Federal Court and Tribunal decisions, as well as provisions of the relevant legislation, which the Secretary had not addressed in reply. The Direction made by the Tribunal on 8 May 2020 stated as follows:
The Tribunal DIRECTS:
1.The parties are to be provided with a copy each of the transcript of the hearing held 17 September 2019 for the purpose of assisting them to make the submissions outlined below.
2.On or before 22 May 2020 the Tribunal seeks further submissions from the Respondent regarding:
a.The relevance of s 1184K of the Social Security Act 1991 (Cth);
b.The relevance of s 80 of the Social Security (Administration) Act 1999 (Cth); and the cases on s 80 handed up by the Applicant at the hearing (… Mentink v Secretary, Department of Social Services [2016] FCAFC 39; Harfouche and Secretary, Department of Social Services (Social Services Second Review) [2019] AATA 2484; and RBJS and Secretary, Department of Jobs and Small Business (Social Services Second Review) [2018] AATA 1625.
c.Whether the Applicant’s wife’s superannuation fund monies are an ‘exempt asset’ under s 1118(1) of the Act, and when the funds became exempt;
d.Whether the Applicant was entitled to DSP from 30 November 2017, and consequently, whether his DSP should have been suspended rather than cancelled between 20 September 2017 to 30 November 2017 (being the date the compensation monies were received into the joint bank account, and the date they were transferred into the wife’s superannuation fund); and
e.Further submissions in addition to those in paragraphs [36] and [37] of the Respondent’s Statement of Facts, Issues and Contentions, including relevant case law, as to whether special circumstances exist with respect to the Applicant’s wife’s compensation payout.
3.On or before 5 June 2020 the Applicant has leave to make submissions in reply, or to advise the Tribunal in writing (for example, via email) if he does not intend to do so.
Consequently, the Tribunal had before it, and considered, further written submissions from the Secretary dated 22 May 2020, and further written submissions in response from the Applicant filed on 5 June 2020. The Applicant also attached to his written submissions copies of the Income Tax Notice of Assessment for both himself and his wife for the year ended 30 June 2019. These submissions have been dealt with by the Tribunal under the relevant sections below.
WAS THERE AN OVERPAYMENT OF DSP TO THE APPLICANT?
The rate of DSP is worked out using the Rate Calculator contained within s 1064 of the Social Security Act 1991 (Cth) (the Act). In summary, the rate of DSP will be reduced under the income or the assets test, whichever produces a lower rate of pension. DSP will not be payable to a person if the person’s rate would be nil.
An “asset” is defined in s 11 of the Act as “property or money”. This includes money in bank accounts. Thus, at the time that the Applicant’s wife’s compensation payment went into their joint bank account on 20 September 2017, it was an asset. As the Applicant and his wife are a couple, they are treated as having pooled their resources (s 1064-A2 of the Act). This meant that, as at 20 September 2017, the compensation payment was an assessable asset which exceeded the assets value limit at which DSP was payable. A person’s assets value limit is the maximum value of assets the person can have without affecting the person’s pension rate (s 1064-G1 of the Act).
Section 1118(1) of the Act provides that certain assets can be disregarded in calculating the value of a person’s assets. This includes the value of a person’s superannuation fund, which can be disregarded until the person reaches pension age or starts to receive a pension annuity out of the fund (s 1118(1)(f) of the Act). Therefore, the compensation monies became an “exempt asset” under s 1118(1) of the Act when they were invested into the superannuation fund on 30 November 2017. However, this does not alter the fact that as at 20 September 2017, the compensation monies in the bank account were an asset, which placed the Applicant over the assets value limit for a DSP.
Section 1223(1) of the Act effectively provides that if a social security payment is made, and the person who obtains the benefit was not entitled to receive it, the amount of the payment is a debt due to the Commonwealth.
As the Applicant received an overpayment of age pension during the Debt Period that he was not entitled to receive because he exceeded the assets value limit, the Tribunal finds that the amount of the overpayment is a legally recoverable debt to the Commonwealth.
SHOULD THE APPLICANT’S DSP HAVE BEEN SUSPENDED, RATHER THAN CANCELLED?
As noted in paragraph [34](d) above, the Applicant argued that in accordance with s 80 of the Administration Act, his DSP should have been suspended from the time his wife’s compensation payment went into their joint bank account (being 20 September 2017) until the time the monies were deposited into her superannuation account (being

30 November 2017) as opposed to being cancelled.
The Secretary submitted that s 80 is not relevant because the Applicant’s DSP was cancelled under s 94 of the Administration Act.
Section 80 of the Administration Act provides, in part, that:
(1)If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a) who is not, or was not, qualified for the payment; or
(b)to whom the payment is not, or was not, payable (other than because of the operation of Division 3AA);
the Secretary is to determine that the payment is to be cancelled or suspended.
Note:Division 3AA is about compliance with participation payment obligations for persons who are not declared program participants.
(2)Subsection (1) does not authorise the Secretary to make a determination if:
(a)the payment of a social security payment to a person has been cancelled or suspended by the operation of another provision of the social security law; and
(b)the determination would take effect at or after the time at which the cancellation or suspension referred to in paragraph (a) would take effect.
(Emphasis added.)
The Secretary submitted that s 80 is not applicable because the Applicant’s DSP was cancelled by virtue of another provision of the social security law, namely s 94 of the Administration Act which provides:
(1)Subject to subsection (2), if:
(a)a person who is receiving a social security payment is given a notice under subsection 68(2); and
(b)the notice requires the person to inform the Department of the occurrence of an event or change of circumstances within a specified period (the notification period); and
(c)the event or change of circumstances occurs; and
(d)the person does not inform the Department of the occurrence of the event or change of circumstances within the notification period in accordance with the notice; and
(e)because of the occurrence of the event or change of circumstances:
(i) the person ceases to be qualified for the social security payment; or
(ii) the social security payment ceases to be payable to the person;
the social security payment is cancelled, by force of this subsection, on the day on which the event or change of circumstances occurs.
(Original emphasis.)
More specifically, the Secretary submitted that the Applicant was sent notices under s 68(2) of the Administration Act such as a notice dated 7 April 2016, which stated that “[y]ou must tell us within 14 days…if any of the changes listed below happen…” These changes included: “[t]ell us within seven days if you and/ or your partner will receive, have received or are likely to receive compensation” (T5/47). The Secretary contended that because the Applicant did not advise Centrelink that his wife had received her compensation payment in accordance with the timeframes set out in these notices, his DSP ceased to be payable.
At the hearing, the Applicant accepted that he had received these types of notices, including the notice dated 7 April 2016. The following exchange is relevant (transcript/10-11):
MS HINWOOD:         So, [Applicant], you have been in receipt of the DSP for a long time haven’t you? Since 2000?
APPLICANT:              Yes.
MS HINWOOD:         So that’s now about 19 years?
APPLICANT:              Yes
MS HINWOOD:         And over that period of time you must have received a lot of letters from Centrelink about your DSP entitlements?
APPLICANT:              I have.
MS HINWOOD:         You have? Yes. So an example of such letter might be this one that is in the T documents. It’s T5, page 46?
APPLICANT:              Okay, T5,46.
MS HINWOOD:         Did you receive this letter?
APPLICANT:              Yes, yes, I got it, yes.
MS HINWOOD:         And you will see that this letter has combined annual income down the bottom of $13,389.24 on the first page?
APPLICANT:              Correct.
MS HINWOOD:         And then on the second page you would agree that there is some - a heading that says what you must tell us?
APPLICANT:              Yes.
MS HINWOOD:         And then a list of various things underneath that?
APPLICANT:              Correct.
MS HINWOOD:         And the first line says, “You must tell us within 14 days if any of the changes listed below happen or are likely to happen to you and/or your partner if you have one? Yes?
APPLICANT:              Yes, yes, I do remember.
MS HINWOOD:         And then under the list of things that you need to advise Centrelink about there’s you or your partner’s income changes?
APPLICANT:              Yes.
MS HINWOOD:         Compensation if you or your partner will receive, have received or are likely to receive compensation?
APPLICANT:              Yes.
MS HINWOOD:         And assets - if the value of your and/or your partner’s assets changes?
APPLICANT:              Yes.
MS HINWOOD:         So it would be fair to say then, based on what we have just talked about, that you were very aware that you needed to advise Centrelink of any changes in relation to your income and assets, is that fair?
APPLICANT:              Of course, of course.
The Applicant contended, however, that Centrelink was advised of his wife’s compensation payment, and consequently, they should have linked the information to his account without the need for the Applicant to separately advise Centrelink. Specifically, as summarised in paragraph [34](a) above, contact was made with Centrelink regarding the Applicant’s wife on 28 August, 29 August and 6 September (see paragraphs [14], [15] and [17] above). Thus, the Applicant’s evidence was that he did not specifically advise Centrelink of a change in his assets because he thought they should have updated his account based on the information received regarding his wife’s Centrelink account.
However, the obligation is on the individual to update their details. Indeed, the notice dated 7 April 2016 clearly states that the Applicant was required to tell Centrelink (with the notice stating “[y]ou must tell us”) of any changes to his income and assets. It is not the responsibility of Centrelink to reconcile a person’s Centrelink account with that of their partner. In this regard, the Secretary referred the Tribunal generally to Scott v Secretary Department of Social Security (2000) 65 ALD 79. The Tribunal notes the following passage from the joint judgment of Beaumont and French JJ at 88 [23]:
It is one thing to expect a department (reasonably) to communicate accurately the general range of benefits available; it is another to expect the department to have sufficient knowledge of the personal circumstances of any particular applicant for social security, so as to be in a position to advise the applicant of specific benefits that might be available in his or her personal circumstances.
The evidence shows that the Applicant contacted Centrelink to discuss his shareholdings on 4 December 2017 (see above paragraph [20]) and made another general enquiry on

13 December 2017 (see above paragraph [21]). However, there is no record of the Applicant advising Centrelink of his wife’s compensation payment on these occasions. It was only when the Applicant provided bank statements, following a letter from Centrelink requesting him to do so dated 23 March 2018 (see above paragraphs [23]-[24]), that Centrelink was properly advised of the compensation monies in the Applicant’s joint bank account with his wife.
Accordingly, the Tribunal finds that the evidence before it indicates that the Applicant’s DSP was cancelled under s 94 of the Administration Act, and not s 80. This is because, in accordance with s 94, he received a notice under s 68(2) to advise of any change in his financial circumstances (including the payment of compensation to himself or his partner) (ss 94(1)(a) and (b) of the Administration Act). After receipt of the compensation into the joint bank account, the Applicant did not advise Centrelink in the required time frame of his change in assets (ss 94(1)(c) and (d) of the Administration Act). The receipt of the compensation monies on 20 September 2017 meant that the Applicant exceeded the assets value limit for DSP and consequently DSP ceased to be payable to him at that date

(s 94(1)(e) of the Administration Act).
IS THERE A REASON NOT TO RECOVER THE DEBT?
In Secretary, Department of Social Security and Hales (1998) 82 FCR 154, 155 (Hales) Justice French (as he then was) stated:
From time to time in the administration of social security benefits overpayments occur. Sometimes these are the result of innocent non-compliance with the requirements of the law which can be affected by the stress associated with the circumstances that led to the receipt of benefits in the first place. 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 led to the overpayment and the circumstances of the persons concerned. However, the confining of a recovery regime by rigid rules, particularly in this area of the law, is likely to be productive of unfair or harsh outcomes in some of the great variety of fact situations that can arise. There are provisions in the Act which recognise that reality. They relate to the writing off and the waiver of debts otherwise due to the Commonwealth.
As identified by French J, the starting point is that the taxpayer expects the repayment of monies received by a person if that person was not entitled to them. However, to prevent hardship, the Act balances the requirement to repay an overpayment by allowing for a social security debt to be waived or written off in certain circumstances.
Waiver for sole administrative error
Section 1237A of the Act provides that the Secretary can waive a debt when there is an administrative error if certain requirements are met:
(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.
Note:Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).
(1A)Subsection (1) only applies if:
(a)the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or
(b)if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;
whichever is the later.
In Gerhardt and Department of Employment, Education and Training [1996] AATA 173,

[39]-[40] (Gerhardt), Deputy President Forgie stated that “solely”, in the context of a debt being attributable solely to the Commonwealth’s administrative error, should be given its “ordinary meaning” under an equivalent provision of the (now repealed) Student Assistance (Youth Training Allowance) Amendment Act 1994 (Cth). Deputy President Forgie stated, at [40] of Gerhardt:
Applying those ordinary meanings to the sub-section mean that the Secretary must waive the right to recover the proportion of the debt that is attributable only to the Commonwealth’s administrative error. The Secretary’s duty to waive does not extend to those debts which are attributable to errors or other factors which are independent of the Commonwealth’s administrative error. It makes no difference that those other errors or factors are minor. If those other errors or factors follow as a result of the Commonwealth’s administrative error (i.e. they are incidental to the Commonwealth’s error), then it may be that the debt is attributable solely to the Commonwealth’s administrative error. Whether it is or is not attributable in that situation to the Commonwealth’s administrative error will be a question of fact.
In Secretary, Department of Family & Community Services v Sekhon (2003) 73 ALD 41, 47 [41], Wilcox J explained that:
However, it seems to me, the tribunal failed to consider the significance of the inclusion, in s 1237A(1), of the word ‘solely’. For the subsection to have effect, the ‘proportion’ of the debt — in this case, it is common ground, that would be the whole of it — must be “attributable solely” to administrative error. It is not enough that, in the absence of administrative error, the debt would not have arisen. Administrative error must be the sole cause, not merely one of multiple causes.
The meaning of “sole administrative error” was further explained by Deputy President Forgie in Ward and Secretary, Department of Families and Community Services [2000] AATA 212, [47]:
This means that the Secretary’s duty to waive does not extend to those debts which are attributable to errors or other factors which are independent of the Commonwealth’s administrative error. It makes no difference that those other errors or factors are minor. If those other errors or factors follow as a result of the Commonwealth’s administrative error (i.e. they are incidental to the Commonwealth’s error), then it may be that the debt is attributable solely to the Commonwealth’s administrative error.
The evidence outlined above does not support a conclusion that the debt was “attributable solely to an administrative error made by the Commonwealth”. As noted at paragraph [53] above, it is not the responsibility of Centrelink to have knowledge of the specific circumstances of applicants and to advise them accordingly. The error was not, for example, due to any failure by Centrelink to record bank account details that the Applicant provided. Rather, the Applicant did not advise Centrelink within the 7 day time period of his wife’s compensation payment. It was this failure to advise Centrelink that led to the debt arising. The Tribunal accepts that it was the Applicant’s honest belief that Centrelink would link the accounts of himself and his wife. The Tribunal further accepts that setting up the superannuation fund was a complex matter requiring specialist advice (noting the email from the Applicant’s financial adviser dated 12 October 2018 in Exhibit A1) and that, the advice received from the financial advisor was that the Applicant and his wife had a period of 90 days within which to establish the superannuation fund (transcript, page 15). However, the debt cannot be said to have arisen solely due to an administrative error by the Commonwealth. Consequently, the Tribunal finds that the Applicant’s debt cannot be waived under s 1237A of the Act.
Waiver in special circumstances

In Exhibit A1, the Applicant stated, “[w]hy were we not advised by Centrelink that there is a provision in a SS act 1184K which under special circumstances, which I believe is our case, the Sec may disregard some compensation payments in part or in full as NOT having been made OR Not liable to be paid” (emphasis in original).
Section 1184K of the Act provides that:
(1)For the purposes of this Part, the Secretary may treat the whole or part of a compensation payment as:
(a)not having been made; or
(b)not liable to be made;
if the Secretary thinks it is appropriate to do so in the special circumstances of the case.
(2)If:
(a)a person or a person’s partner receives or claims a compensation affected payment; and
(b)the person receives compensation; and
(c)the set of circumstances that gave rise to the claim for compensation is not related to the set of circumstances that gave rise to the person’s or the person’s partner’s receipt of, or claim for, the compensation affected payment;
the fact that those 2 sets of circumstances are unrelated does not alone constitute special circumstances for the purposes of subsection (1).
In summary, the Secretary’s submission regarding s 1118K was that the section commences with the qualification “[f]or the purposes of this Part”, which refers to Part 3.14 of the Act. This part concerns “compensation recovery”. The Secretary submitted that there has been no decision made under Part 3.14 concerning the Applicant and that, rather, the decision to raise the DSP debt was made under Part 5.2 of the Act (see submissions dated 22 May 2020, paras [5]-[8]). For these reasons, the Tribunal agrees that s 1184K of the Act is not applicable.
Section 1237AAD of the Act provides for waiver in special circumstances. 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, 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.
Note 1:Section 1236 allows the Secretary to write off a debt on behalf of the Commonwealth.
…
In summary, s 1237AAD of the Act gives the Secretary the discretion to waive a debt if there are special circumstances, other than financial hardship alone, which make it appropriate to do so. Additionally, the debtor must not have contributed to the debt by knowingly making a false statement or a false representation or by otherwise knowingly failing or omitting to comply with the Act or the Administration Act.
The Tribunal accepts that the Applicant did not knowingly make a false statement or representation. He genuinely believed that Centrelink had been advised on three occasions about his wife’s compensation payment, and that they would link the information to his own Centrelink account. It follows that he also did not knowingly fail to comply with the Act.
Neither the Act nor the Administration Act defines “special circumstances”. However, the meaning of special circumstances has been considered by the Federal Court and the Tribunal in numerous decisions.
In Gerhardt at [47], Deputy President Forgie stated:
The words ‘special circumstances’ have been considered in a number of cases in a number of contexts. These include Beadle v Director-General of Social Security (1985) 60 ALR, Secretary, Department of Social Security v Hulls (1991) 22 ALD 570, Trimboli v Secretary, Department of Social Security (1989) 86 ALR 64 and Secretary, Department of Social Security v Smith (1991) 13 AAR 454. The essence of cases such as these is that a consideration of whether or not there are special circumstances must be undertaken in the context in which the discretion is given. It is clear from Division 15 of Part 8 of the Act [Student Assistance (Youth Training Allowance) Amendment Act 1994] that the purpose of the provisions is to ensure the recovery of amounts paid under the Act to persons who are not entitled to be paid those amounts. What are special circumstances must be considered against that background. There will be special circumstances if the circumstances are such that it is unreasonable, unjust or inappropriate to recover the amount paid bearing in mind that the provisions are intended to ensure the recovery of amounts incorrectly paid…
In Beadle and Director-General of Social Security (1984) 6 ALD 1 (Beadle), 3 the Tribunal stated:
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 these 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) 40 ALD 541 (Groth), 545 Kiefel J (as she then was) stated:
The phrase ‘special circumstances’, it has been said, although imprecise is sufficiently understood not to require judicial gloss: Beadle’s case... and for present purposes it is sufficient to observe that 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…
In Hales, 162, French J (as he then was) stated:
The evident purpose of s 1237AAD is to enable a flexible response to the wide range of situations which could give rise to hardship or unfairness in the event of a rigid application of a requirement for recovery of debt. It is inappropriate to constrain that flexibility by imposing a narrow or artificial construction upon the words. It may be that there will be few cases in which the Secretary will be satisfied that there are special circumstances in the absence of financial hardship. It may be that there are few cases in which having found special circumstances to exist, the Secretary would exercise the discretion to waive in the absence of financial hardship. But to anticipate the limits of the categories of possible cases by imposing on the language of the section a fetter upon its application which is not mandated by its words, is to erode its useful purpose.
In Angelakos v Secretary, Department of Employment and Workplace Relations (2007)

100 ALD 9 (Angelakos), 17-18 [33] Besanko J stated after reviewing the case law on the meaning of “special circumstances”:
I also note that the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances. The danger is that the test will be overstated if the word ‘exceptional’ is emphasised. 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. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case. It may not be easy to postulate the ordinary or usual case other than in quite general terms and, in doing so, close attention must be given to the particular statutory context.
In Re Davy and Secretary, Department of Employment and Workplace Relations (2007)

94 ALD 693 (Re Davy), 715-16 [80] Deputy President Forgie explained:
The ‘special circumstances’ are not merely directed to the person’s own circumstances. Rather, they are directed to those that are ‘special circumstances ... that make it desirable to waive’. That necessarily requires a consideration of the person’s individual circumstances but also a consideration of the general administration of the social security system. Waiver of the debt would mean that Mr Davy would have had the benefit of part of his DSP in circumstances in which he was not entitled to it. Certainly, he did not know that his father was giving him his own money but the fact that he was deceived by his father does not mean that it is desirable to waive the debt. He has had the benefit of the money and there is no injustice in requiring him to repay the money of which he has had the benefit but not the entitlement... The system of administration of the SS Act does not visit any injustice for many if not all social security recipients but it did not lead to any injustice or unfairness on Mr Davy that is not visited, or potentially visited, upon all other recipients of social security payments under the Act. Therefore, I am not satisfied that there are special circumstances that make it desirable to waive the debt under s 1237AAD of the Act.
In the Secretary’s submissions dated 22 May 2020, the Secretary cited further authorities regarding the meaning of “special circumstances”. These authorities included Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 (Boscolo), 535-6 [18] where French J (as he then was) stated:
The core of the requirement for ‘special circumstances’ or ‘special reasons’ is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course: Minister for Community Services and Health v Chee Keong Thoo [1988] FCA 54; (1988) 78 ALR 307 at 324 (Burchett J). But that does not require that the case be extremely unusual, uncommon or exceptional: Secretary, Department of Social Security v Hodgson [1992] FCA 338; (1992) 108 ALR 322. In Beadle the Full Court, having concluded that the term ‘special’ was sufficiently well understood not to require a judicial gloss said the matter was one for the decision-maker, in that case the Director-General of Social Security.
In Dranichnikov v Centrelink (2003) 75 ALD 134 (Dranichnikov), 148 [65-6] the Full Court of the Federal Court stated:
[65]The decision-maker clearly also determined that the circumstances were such that they were not exceptional or unusual so that waiver could not be made as a matter of discretion under s 101. That equates ‘special circumstances’, as that expression is used in the Administration Act with either exceptional circumstances or unusual circumstances. The origin of the test apparently adopted by the secretary appears to be the decision of the first instance Judge in Beadle v Directory-General of Social Security (1985) 7 ALD 670; 60 ALR 225. That was a decision under previous legislation, the history of which is referred to by French J in Secretary of Department of Social Security v Hales (1998) 82 FCR 154; 51 ALD 695; 153 ALR 259. The Full Court in Beadle comprising Bowen CJ, Fisher and Lockhart JJ, however, was of the view that it was not possible to lay down precise rules as to what constituted special circumstances under the then s 102(1)(a) of the Social Security Act 1947 (Cth). Their Honours point out that the question whether there were special circumstances was one for the decision-maker (in that case the Director-General) bearing in mind the purpose for which the power was given. The reference to the first instance decision from which the words ‘unusual, uncommon or exceptional’ come was not actually affirmed by the Full Court.
[66]To some extent the question whether there were special circumstances must depend on how it came about that the error occurred. Again that is not a matter to which the decision-maker apparently averted. Other cases which have considered analogous words such as ‘special reasons’ has tended to conclude, albeit in different contexts, that what is required will be circumstances which distinguish the case in consideration from the usual case. There will be a requirement that the circumstances are such that takes the case out of the ordinary: Jess v Scott (1986) 12 FCR 187; 70 ALR 185 and the cases in various contexts in the decision which Lockhart, Shepherd and Burchett JJ discuss.
In Ryde v Secretary, Department of Family and Community Services [2005] FCA 886 (Ryde), [25-6] Branson J stated:
25In my view, the Tribunal probably overstated the significance of the requirement in s 1237AAD(b) for ‘special circumstances’. The Full Court in Beadle did not endorse the view expressed by the Tribunal in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3 that circumstances are special only if they are ‘unusual, uncommon or exceptional’.
26However, the Tribunal concluded that the applicant’s circumstances ‘do not differ from those of many income support recipients’. In the context in which the Tribunal reached this conclusion, it is to be understood as having made a judgment that neither hardship nor unfairness made it desirable to waive all or part of the applicant’s debt because the applicant’s circumstances were common-place rather than special. While, as French J pointed out in Hales, the evident purpose of s 1237AAD is to enable a flexible response to the wide range of circumstances which could give rise to hardship or unfairness, the statutory requirement for ‘special circumstances’ discloses an intention to proscribe waiver in ordinary cases. The hardship or unfairness to which French J referred must be understood to be hardship or unfairness sufficient to justify departure from the general rule in the particular case.
In Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones (2012) 89 ATR 267 (Jones), 274 [51] Jacobson J stated:
The effect of the authorities is that the phrase ‘special circumstances’, although lacking in precision, is sufficiently understood as including events or things that render the operation of the statue in a particular case as unfair, unintended or unjust. What is required is something that takes the case out of the ordinary, and unfairness or unintended consequences may show that this exists. Moreover, the circumstances of the case are not confined to matters that are external to the operation of the statutory scheme…
In the current application, the Applicant has raised the following as being special circumstances (see written submissions filed 5 June 2020):
(a)the mental state of the Applicant and his wife, and specifically the stress this application has put on the Applicant, his wife and their three children, as well as their respective health conditions;
(b)that Centrelink did not apply common sense before making the “serious decision” to cancel the Applicant’s DSP, which he had previously been receiving for nearly 20 years;
(c)that Centrelink was advised at least three times of his wife’s compensation payment;
(d)
that Centrelink became aware there was an issue with his assets on

4 December 2017 but continued to pay him DSP until 30 May 2018 when he provided the bank statements, thus increasing the amount of the debt;
(e)that the Applicant’s wife’s compensation payment was solely to cover her future income, as well as pain and suffering, and “that [the Applicant’s] wife’s funds are dedicated and awarded to [her], not [the Applicant]”; and
(f)
the Applicant and his wife have an “uncertain future”, in support of which the Applicant produced Income Tax Notices of Assessment for the year ending

30 June 2019 for himself and his wife which showed them to have zero taxable income.
The Tribunal has also considered the submissions of the Secretary which, in summary, were that the Applicant’s circumstances were not sufficiently unusual, exceptional or uncommon as to constitute special circumstances (Exhibit R2, para [36-7]; submissions dated 22 May 2020, paras [26]-[29]). The Secretary noted, after citing the various authorities above, that “there is a high threshold that must be met before recovery of a debt can be waived on the basis of special circumstances” (submissions dated 22 May 2020, para [26]).
Noting that special circumstances are for the decision-maker, in this case the Tribunal, to determine, having regard to the particular circumstances of the individual case, the Tribunal is of the opinion that there are special circumstances with respect to this application which take this case out of the ordinary (Beadle, Boscolo, Dranichnikov, Groth, Angelakos). Whilst the Tribunal agrees that circumstances such as experiencing stress or financial hardship are not enough to constitute special circumstances, the circumstances of the Applicant’s wife’s compensation payment are sufficiently unusual so as to distinguish this application.
The Applicant’s wife received a compensation payment after being seriously injured in a car accident. The compensation payment was solely to compensate the Applicant’s wife for pain, suffering, future lost earnings and medical expenses. It had nothing to do with the Applicant. The compensation payment was, however, deposited in the joint bank account of the Applicant and his wife, until such time as a special superannuation account could be set up to provide for the Applicant’s wife.
While this happened, the monies sat in the joint account of the Applicant and his wife for a period of approximately two months, being (according to evidence from the financial advisor) the minimum period required to obtain the necessary financial advice and to establish the superannuation fund to provide for his wife’s future care. Thus, although the monies were “assets” of the Applicant and his wife for the time they were in the joint bank account, this is not a case where the Applicant failed to disclose an asset that he had gained for his own benefit in order to receive monies he was not entitled to. He did not receive a windfall gain. He exceeded the asset limit because his wife’s compensation monies were temporarily deposited into a joint bank account. The monies were not at any time his. The Applicant’s position was analogous to that of a trustee whereby any share that was his by virtue of the account being a joint one, was in fact held by him on behalf of his wife until her superannuation fund could be established.
Due to the Applicant’s failure to advise Centrelink of these deposited monies in the required timeframe, his DSP was cancelled due to the operation of s 94 of the Administration Act. If his wife had not been paid any compensation he would have continued to receive DSP because he was otherwise entitled to it (Re Davy). Thus, although the Applicant was at fault because he did not advise Centrelink of the compensation payment in the required time, the compensation monies were not for his benefit. The rigid application of the social security law therefore had an unfair, unintended or unjust result (Hales, Ryde) in cancelling the Applicant’s DSP permanently (instead of for the two month period that he had access to the monies in his bank account). As a result, the Applicant incurred a debt of monies that, if not for the compensation payment, he would have continued to receive. The Tribunal therefore finds that it would be unreasonable, unjust and inappropriate (Gerhardt, Jones) to recover the amount overpaid for the entire period.
Thus, in the circumstances of the Applicant’s case, the Tribunal is satisfied that there are special circumstances under s 1237AAD of the Act which justify waiver of the debt from

30 November 2017 until the end of the Debt Period. This means that the Applicant will only incur a debt for the period that the monies were deposited into the joint bank account, being from 20 September 2017 to 30 November 2017.
Write off

Section 1236 of the Act provides that the Secretary may write off (that is, delay recovery of) a debt in certain circumstances, as follows:
(1)Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
(1A)The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a)the debt is irrecoverable at law; or
(b)the debtor has no capacity to repay the debt; or
(c)the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d)it is not cost effective for the Commonwealth to take action to recover the debt.
(1B)For the purposes of paragraph (1A)(a), a debt is taken to be irrecoverable at law if, and only if:
(b)there is no proof of the debt capable of sustaining legal proceedings for its recovery; or
(c)the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or
(d)the debtor has died leaving no estate or insufficient funds in the debtor’s estate to repay the debt.
(1C)For the purposes of paragraph (1A)(b), if a debt is recoverable by means of:
(a)deductions from the debtor’s social security payment; or
…
the debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the debtor being in severe financial hardship.
Although
the debt is recoverable at law, there is now conflicting evidence as to whether the Applicant has the capacity to repay it. At the time of the AAT1 hearing on 18 January 2019 the Applicant had approximately $74,000 in a joint bank account with his wife and was also receiving income from self-employment as a charter vehicle driver. However, on
5 June 2020, the Applicant filed Income Tax Notices of Assessment for the year ending

30 June 2019 for both himself and his wife, which showed them to have zero taxable income. This suggests that the Applicant may not have the capacity to repay the debt as at the date of this decision. However, as the Tribunal has decided above that there are special circumstances which justify the debt being waived from 30 November 2017 until the end of the Debt Period, it is unnecessary for the Tribunal to decide whether the debt should be written off under s 1236 of the Act.
CONCLUSION
In summary, and for the reasons outlined above, the Tribunal finds that:
(a)there was an overpayment of DSP to the Applicant during the Debt Period;
(b)the Applicant’s DSP was correctly cancelled under s 94 of the Act;
(c)however, the Applicant should not be required to repay the full amount of the overpayment of DSP for the entire Debt Period because there are special circumstances which justify the debt being waived in accordance with s 1237AAD of the Act; and
(d)the Applicant should only be required to repay the debt for the period of approximately two months when his wife’s compensation payment was in their joint bank account, being from 20 September 2017 to 30 November 2017. The overpayment debt accrued from 30 November 2017 until the end of the Dept Period is to be waived under s 1237AAD of the Act.
DECISION
For the reasons outlined above, the correct or preferable decision is to set aside the Reviewable Decision, and to substitute a new decision that the debt is to be waived under s 1237AAD of the Act from 30 November 2017 until the end of the Debt Period.

I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

..........[sgd]..............................................................
Associate
Dated: 24 June 2020

Date of hearing: 17 September 2019

Date final submissions received: 5 June 2020

Applicant: In person

Representative for the Respondent: Laura Hinwood, Services Australia

Date of hearing:	17 September 2019
Date final submissions received:	5 June 2020
Applicant:	In person
Representative for the Respondent:	Laura Hinwood, Services Australia