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

Thomas and Secretary, Department of Social Services (Social services second review) [2023] AATA 192 (24 January 2023)

GENERAL DIVISION

File Number(s): 2022/0615
Re:Ian Thomas
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

Decision

Tribunal:Member Lee Benjamin
Date:24 January 2023
Date of written reasons: 20 February 2023
Place:Brisbane

The Tribunal affirms the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal made on 5 January 2022:

(a)the Applicant was paid in excess of his correct entitlement to Age Pension (AGP) in the amount of $53,831.37 for period 19 October 2017 to 7 October 2020 and the overpayment constitutes a debt to the Commonwealth;
(b)the requirements of sections 1236, 1237A and 1237AAD of the Social Security Act 1991 are not met; and
(c)the Applicant’s AGP debt is recoverable in full.

.........................[SGD]............................

Member Lee Benjamin

Catchwords

SOCIAL SECURITY – Age Pension Debt – Overpayment – Superannuation income - Whether overpayment constitutes debt to commonwealth – Whether debt is recoverable – Whether appropriate for debt to be written off – Whether appropriate for the debt to be waived – Where decision under review affirmed.

Legislation
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security (Administration) Act 1999

Cases
Barnes and Secretary, Department of Social Services [2014] AATA 786
Beadle and Director-General of Social Security [1984] AATA 176
Close and Secretary, Department of Social Services [2021] AATA 4678
Hungerford and Repatriation Commission (1990) 21 ALD 568
Ivovic and Director-General of Social Services [1981] AATA 57
L v Department of Social Security [1995] AATA 159
Lumsden and Secretary, Department of Social Security [1986] AATA 228
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) 2 ALD 634
Re Stubbsand Secretary, Department of Families and Community Services [2003] AATA 729
Secretary Department of Social Security v Hales [1998] FCA 219
Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190
Stafford and Secretary, Department of Social Services [2019] AATA 2746

Secondary Materials

Social Security Guide – Guides to Social Policy Law

REASONS FOR DECISION

Member Lee Benjamin

20 February 2023

The Decision Under Review

The decision under review is a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) made on 5 January 2022. That AAT1 decision:
(d)Affirmed Services Australia’s (the Agency) Authorised Review Officer’s (ARO) decision made on 3 August 2021 to raise and recover from Mr Ian Thomas (the Applicant) an Age Pension (AGP) debt of $53,831.37 for the period 19 October 2017 to 7 October 2020; and
(e)Set aside the Agency’s ARO decision made on 3 August 2021 to impose an interest charge of $624.73 on the AGP debt for the period 22 May 2021 to 20 July 2021 and substituted it with a decision that no interest charge be raised in respect of that period.

Background

The Secretary, Department of Social Services (the Respondent) accepts the findings of the AAT1 in relation to the $624.73 interest charge for the period 22 May 2021 to 20 July 2021 and does not contest that finding in this application.
Accordingly, in determining whether the AAT1 decision is the correct and preferable decision, the General Division of the Administrative Appeals Tribunal (this Tribunal) must consider:
(a)Whether the Applicant was paid in excess of his correct entitlement to AGP in the period 19 October 2017 to 7 October 2020;
(b)Whether this overpayment constitutes a debt to the Commonwealth; and
(c)Whether all or part of the debt may be written-off or waived.
The Applicant purchased a Super Fund (ILKM) on 1 October 2010 for a purchase price of $1,040,782.19 (Exhibit 3, ST1, p 6). As at 1 July 2015, ILKM’s balance was $600,000 (Exhibit 3, ST1, p 6).
The Applicant was granted AGP on 23 October 2015 with effect from 2 October 2015, and his AGP rate was calculated a total combined asset figure of $880,313 (Exhibit 3, ST2, p 13).
On 23 October 2015 the Agency issued the Applicant a notice under subsection 68(2) of the Social Security (Administration) Act 1999 (the Administration Act) advising the Applicant of this AGP grant, as well as the obligation to advise the Agency within 14 days if his and/or his partner’s gross income changed, with gross income defined as including income streams from an allocated pension. The notice also advised the Applicant that he was required to advise the Agency if the value of his and/or his partner’s assets changed by $1,000 or more (Exhibit 3, ST2, p 14).
Similar notices were issued to the Applicant on 18 December 2015, 12 May 2016,

3 December 2016 and 14 December 2016 (Exhibit 3, ST3, p 16 - 24). The notice dated 14 December 2016 advised the Applicant that his AGP was being calculated on the basis of a combined annual income of $4,769.94 and was under an obligation to advise the Agency if that changed.
In May 2016, ILKM made $298,000 in voluntary contributions to the Applicant’s wife’s QSuper superannuation account (QSuper account) (Exhibit 3, ST4, p 26-28). Further contributions from ILKM were paid into the Applicant’s partner’s QSuper account, and ILKM ceased to exist as at 30 June 2017, upon which all remaining funds held were paid out to existing members (Exhibit 3, ST5, p 32).
On 19 October 2017, the Applicant’s partner purchased an account-based income stream product through QSuper, with a purchase price of $1,003,061.71 (Exhibit 1, T9, p 93). The Applicant did not notify the Agency about the purchase of this account-based income stream, and the Applicant was paid AGP without regard to the value of that asset.
In February 2018, QSuper commenced providing the Agency with information twice yearly about the Applicant’s partner’s QSuper account. The Agency did not ‘code’ the income stream data on the Applicant and his partner’s internal Agency records. The consequence of the income stream not being coded on the Applicant’s and his partner’s records was that the data received from QSuper was not able to be ’matched’ with any existing data or superannuation products. There was no manual review of the non-matched data. The Agency deleted the unmatched data 90 days after receipt.
On 24 August 2020, the Applicant contacted the Agency with enquiries about his ongoing receipt of AGP. After this contact, the Agency requested further information relating to the Applicant’s partner’s superannuation investments and income streams on 24 August 2020 and 1 September 2020 (Exhibit 1, T7, p 88, T8, p 91). On 1 September 2020, the Applicant provided the Agency with an income account details form disclosing his partner’s QSuper account-based income stream (Exhibit 1, T9, p 93).
On 12 October 2020, the Applicant contacted the Agency to discuss his ongoing receipt of AGP. The Applicant was advised that the Agency had received the account-based income stream documents he provided, and that the income stream was an assessable asset, which triggered a retrospective cancellation of his AGP from 19 October 2017, and a debt that would be referred for investigation (Exhibit 1, T21, p 158, T11, p 98).
On 22 April 2021, the Agency raised an AGP debt in the amount of $53,831.37 against the Applicant in respect of the period 19 October 2017 to 7 October 2020 (Exhibit 1, T21, p 163). The debt was raised on the basis the Applicant’s combined assets, inclusive of the asset value of his partner’s income stream, exceeded the AGP asset test limit from 19 October 2017. A debt notice advising the Applicant of this was issued to the Applicant on 23 April 2021 (Exhibit 1, T12, p 100).
On 3 August 2021, an ARO reviewed the decision to raise and recover the AGP debt from the Applicant. The ARO affirmed the decision, finding that:
(a)the Applicant was overpaid in the debt period as he was paid without regard to the asset value of his partner’s account-based income stream;
(b)the overpayment is a debt in the amount of $54,456.10, which was inclusive of a $624.73 interest charge; and
(c)the Applicant’s debt was not capable of being waived on the basis or either sole administrative error or special circumstances (Exhibit 1, T16, p 112).
On 28 October 2021, the Applicant requested AAT1 review of the ARO decision (Exhibit 1, T19, p 121).
On 5 January 2022, the AAT1 affirmed the debt raising decision and set aside the interest raising decision, substituting it with a decision that no interest charge be raised (Exhibit 1, T2, p 3). In relation to the AGP debt, the AAT1:
(a)affirmed the AGP debt in the amount of $53,831.37;
(b)found that the portion of the debt in the period 19 October 2017 to February 2018 was attributable to the Applicant’s failure to advise the Agency of the relevant change in circumstances;
(c)found that the debt from February 2018 was attributable to both the Applicant’s failure to advise of the relevant change in circumstances and Agency administrative error; and
(d)found that the debt could not be waived on the basis of special circumstances.
On 20 January 2022 the Applicant applied to this Tribunal for review of the AAT1 decision (Exhibit 1, T1, p1).
As at 8 July 2022, the outstanding balance of the Applicants AGP debt is $53,231.37 and the Applicant has entered into a voluntary repayment arrangement of $100 per month (Exhibit 3, ST6, p 62-63).
On 22 August 2022, a Hearing was held for this application. At the Hearing, the Applicant appeared by telephone, was self-represented and gave evidence under affirmation. The Respondent was represented by Andrew Summers of Services Australia, who appeared by telephone.
On 20 September 2022, the parties provided post-hearing closing submissions to this Tribunal.
I pronounced my decision in this application on 24 January 2023. I now provide my reasons for the same.

issues

This Tribunal must consider:
(a)whether the Applicant was paid in excess of his correct entitlement to AGP in the period 19 October 2017 to 7 October 2020;
(b)whether this overpayment constitutes a debt to the Commonwealth; and
(c)whether all or part of the debt may be written-off or waived.
At the Hearing, the Applicant conceded that he was paid in excess of his correct entitlement to AGP in the period 19 October 2017 to 7 October 2020 (Transcript, p 13, lines 4-10). The Applicant further conceded that this overpayment constitutes a debt to the Commonwealth (Transcript, p 14, lines 14-24). The Applicant’s concession on issues (a) and (b) results in common ground between the parties on both points. Accordingly, I do not propose to address these two issues at any length in my reasons.
It follows that the only issue in contention in this application is whether all or part of the debt may be written-off or waived.

Law

The relevant legislation is contained in the Social Security Act 1991 (the Act) and the Administration Act.
The relevant policy is contained in the Social Security Guide – Guides to Social Policy Law (the Guide). The Respondent contends that to ensure consistency in decision-making, the Guides should be followed unless there are cogent reasons to depart from its application (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
It is generally expected that debts to the Commonwealth are recovered. This proposition was expressed by French J in relation to debt recovery in Secretary, Department of Social Security v Hales [1998] FCA 219 as:
The taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to received will be recovered, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the persons concerned.
However, there are circumstances where the recovery of debts is either put on hold for a period of time (written-off) or are no longer pursued (waived). Relevant to the Applicant’s AGP debt, the Respondent may write off or waive his age pension debt if the requirements set out in sections 1236, 1237A or 1237AAD of the Act are met.

Write off of debts

Section 1236 of the Act gives the Respondent power to write off a debt for a stated period or otherwise, if one or more prerequisites in subsection 1236(1A) have been met.
Subsection 1236(1) of the Act provides that, subject to section 1236(1A), the Respondent may, on behalf of the Commonwealth, decide to write off a debt for a stated period or otherwise.
Section 1236(1A) of the Act allows the Respondent to decide to write off a debt 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.
Section 1236(1B) of the Act provides that for the purposes of section 1236(1A)(a), a debt is taken to be irrecoverable at law if, and only if:
(a) there is no proof of the debt capable of sustaining legal proceedings for its recovery; or
(b) the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or
(c) the debtor has died leaving no estate or insufficient funds in the debtor’s estate to repay the debt.
Section 1236(1C) of the Act provides that for the purposes of section 1236(1A)(b), if a debt is recoverable by means of:
(a) deductions from the debtor’s social security payment; or
(b) deductions under section 84 of the A New Tax System (Family Assistance) (Administration) Act 1999; or
(c) setting off under section 84A of that Act;
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.
The term ‘severe financial hardship’ is not defined in the Act. However, it has been considered by the Tribunal in a number of cases.
In Re Lumsden and Secretary, Department of Social Security [1986] AATA 228, the Tribunal considered that for financial hardship to be established, a person’s entire financial position would need to be materially less than the current rate of pension.
In Re Stubbs and Secretary Department of Families and Community Services [2003] AATA 729, the Tribunal stated that:
...Severe financial hardship, while not implying destitution, goes beyond straitened financial circumstances and imports a need for the particular case of a person to include financial suffering of a severe or extreme nature...
In L v Department of Social Security [1995] AATA 159, the Tribunal stated at [66] (in part) as follows:
In summary, I consider that matters relating to the personal financial hardship of the individual are always relevant in any decision as to write off under subsection 1236(1). Retrospective considerations may occasionally be relevant. The essential inquiry will always be whether recovery is a feasible proposition, bearing in mind the financial means and obligations of the individual concerned. Will recovery cause such personal hardship as to run contrary to the beneficial nature of the legislation?

Waiver of debts

Section 1237A of the Act requires the Commonwealth to waive the right to recover a debt if it is attributable solely to administrative error by the Commonwealth and the person has received the payments in good faith.
Section 1237A of the Act requires the Commonwealth to waive the right to recover a debt if it is attributable solely to administrative error by the Commonwealth and the person has received the payments in good faith, stating as follows:
Administrative error
(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.
Selway J, in Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190at [35] stated:
The ordinary or usual interpretation of the phrase ‘attributable solely to’ is that it refers to the single or sole cause of the relevant act or event. The word ‘attributable’ means ‘capable of being attributed’. It involves an objective assessment of causation. The words ‘a debt attributable solely to an administrative error’ can be paraphrased as meaning that the only cause that objectively can be ascribed to the relevant debt is an administrative error.
Section 1237AAD of the Act allows for all or part of a debt to be waived in special circumstances and states in part 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 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.
The Act does not provide a definition of “special circumstances”. However, the general proposition, established by relevant Federal Court decisions, make it clear that “special” means something different from the usual or ordinary.
In Beadle and Director-General of Social Security [1984] AATA 176 the Tribunal stated at [12]:
An expression such as “special circumstances” is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of 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 Re Ivovic and Director-General of Social Services [1981] AATA 57, the Tribunal stated at [45]:
Whilst it would be unwise, if not impossible, to attempt to lay down any precise delineation of what may amount to “special circumstances” ...., the use of the word “special” is, we think, intended to allow the decision-maker the fullest opportunity to consider the particular circumstances of each case ... In the exercise of the discretion ...., the decision-maker must have regard to whether, by exercising the discretion in a particular case, he will be achieving or frustrating ends or objects which are conformable with the scope and purpose of the .... Act.

applicant’s submissions and evidence

At the Hearing, the Applicant told this Tribunal that:
·In August 2020, he contacted the Agency to advise them that they should stop paying the AGP to him because his wife had reached preservation age (66 years) and her superannuation account balance would result in him no-longer being entitled to AGP:
APPLICANT: So, accordingly I contacted the [Agency] and let them know this information. They asked me why. I said, “It’s because of [the Applicant’s wife]’s super and she’d reached preservation age”. I asked them whether they had details of her super, they confirmed they did. (Transcript, p 6, lines 26-29).
·In August 2020, he again contacted the Agency to advise that his AGP was still being paid. He indicated to the Agency that he, “didn’t want to be overpaid and…didn’t want to be in breach of regulations.” He was told by the Agency that, “there were no problems, [he] was acting quite appropriately, and that the matter would be resolved” (Transcript, pages 6-7).
·In September 2020, the Agency requested him to provide information about income streams. As the dates in the request were incorrect, he contacted the Agency and provided accurate details. He accepted under cross-examination that the earliest he personally advised the Agency of the facts of the account based pension change in circumstance was September 2020 (Transcript, page 19).
·In October 2020, he contacted the Agency to again advise that his AGP was still being paid and to ask if there were problems with the information earlier provided. He “was told if there were any issues, [the Agency] would call [him] back the next day. They didn’t”. Between October 2020 and May 2021, he received no contact from the Agency. He “had thought that the matter was entirely resolved because [he] was told that unless [he] was contacted there was no problem” (Transcript, page 7, lines 1-2).
·In May 2021, he received a letter of overpayment from the Agency. In the same month, he requested and received a review (Transcript, pages 7-8).
·In August 2021, he wrote two detailed letters to the Agency and requesting a copy of the ARO decision. He did not receive an acknowledgement or other reply from the Agency.
·In October 2021, he attended the Agency in Toowong. He was told about the ARO decision but was not provided with a copy. The Applicant did not see the ARO decision until after the AAT1 review application was filed, when it was then provided by the Respondent.
·He and his wife would contend that she did not “acquire” an income stream:
APPLICANT:…I would contend and she would contend that she did not acquire an income stream…we believed at all times, we change[d] the account number or the account management in QSuper so that instead of taking ad hoc withdrawals from her super she could manage them on a regular basis which would be easier for her and less work for QSuper and all concerned.
MEMBER: … so your contention is that [the Applicant’s wife] did not receive an income stream from QSuper; that in fact that this was an administrative change that Mrs Thomas precipitated with QSuper for the reasons that you’ve just outlined?
APPLICANT: Correct… we didn’t know what an allocated pension was until we read the review note… I mean, if any suggestion of having a pension was raised at any point in time we would have immediately changed the situation, changed the account back to the number of it that previously existed, which we, as I pointed out to Member Jensen, which we could have done at any point in time, and can still do so… (Transcript, p 9, lines 28-46, p 10, lines 1, 9-16).
·He contends that the mere change of his wife’s QSuper account number for administrative purposes (for an account-based pension rather than periodic withdrawals) was done “merely...for convenience”. It was never suggested to him and his wife that his wife was buying an allocated pension (though he now accepts that she did indeed do so). He further contends that had his wife continued to make periodic withdrawals, there would have been no change in the Applicant’s entitlement to receive the AGP. On this basis, he submits that he would have been entitled to the AGP over the period 19 October 2017 to 7 October 2020:
APPLICANT: We were paid an amount of money that we were duly entitled to from [the Applicant’s wife’s] super fund. If we had have continued like we had been prior to that change taking lump sum figures out of the superannuation fund we could have done so, and we could have taken even more money. (Transcript, p 14, lines 33-37).
·He saw no “red flags” regarding the status of account based pension. He contends that the Agency never raised it with him as an issue despite the Agency receiving the QSuper account transaction data from QSuper in February 2018 and every six months thereafter. QSuper advised him and his wife of the same. He provided this evidence to the Agency and AAT1.
·The Agency did not apply the QSuper account transaction data they had received from QSuper to his Agency account profile over several years. Had the Agency done so, any overpayment issues would have been addressed and appropriate action would have been taken by the Applicant and his wife.
·He has no capacity to repay the $53,831.37:
APPLICANT: …So I have no assets and income. [The Agency in its] letters and [its] latest view in July suggests I have a motor home therefore I have an ability to repay. Again, [the Agency] fails that on the information provided to them.
…
APPLICANT: I have not had that asset for two years, and that was provided. My assets were provided in a sworn statement on 30 November 2021. So, again, [the Agency] do not look at the material that is provided to them. They take a course of action that is blinkered and have not assessed it correctly.
[My wife’s] assets have been fully detailed over the years.
MEMBER: Yes.
APPLICANT: And, again, provided to them on the statement of 30 November 21. My wife purchased our home in 2001. I have never held any part of the title. I ceased work in 2002. I did some contract work in 2004/2005, I think. Other than that I’ve received no income, have no ability to earn an income until the time I receive the pension.
…
APPLICANT: I have no money.
…
APPLICANT: I have no assets. I haven’t had any assets, real assets for 20-odd years. Yes, I held a part interest in the motor home, but I didn’t - I haven’t disposed of assets trying to put myself in a position where I couldn’t repay, I just - there are other reasons behind the fact that.
APPLICANT: I have no assets.
APPLICANT: Anything that I get - and my wife provides me with some spending money, anything that I get is totally at her behest and what she feels that she can support me with. (Transcript, p 16, lines 5-31, p 17, lines 21-38)
·He contends that some or all of the debt should be written off:
MEMBER: Well, okay, so your contention, [Applicant], is that the debt should be written off. And it should be written off on the basis that you would have severe financial hardship in repaying the debt. Do I understand that correctly?
APPLICANT: Yes, I have no ability personally to repay that debt.
MEMBER: Okay.
APPLICANT: I would have to rely on other people to repay that debt. My wife has no other assets other than her house, her car, and her super. As we have declared in November 21, or I have declared, I have no inheritance coming, my parents are dead… (Transcript, p 18, lines 11-23)
·He is currently making payments of $100 per month repayment of debt, funded by his wife.
·His wife still has the account based pension product that is paying out $60,000 per annum ($5,000 per month). His wife has the ability to draw down more funds out of QSuper account if an amount was needed. Between the account based pension and any necessary draw downs he and his wife have been able to meet their regular expenses.
·He accepted, under cross-examination, that he gave evidence to AAT1 that he transferred his ILKM superannuation fund of approximately $575,000 to his wife in or about 2015:
MR SUMMERS: [Applicant], has the tribunal recorded your evidence there correctly?
APPLCIANT: I would think so. I mean, we’re going back to 2015. I haven’t got that information in front of me in terms of what happened to that money, so I can’t definitively tell you that that is the case or not, other than, I mean, everything that I have ever put in these documents has always been the truth.
MR SUMMERS: So if everything you’ve given in the documents is the truth, and you would have told the truth to the tribunal, you’d agree?
APPLCIANT: Correct. (Transcript, p 23, lines 10-14).
·He and his wife’s motorhome was sold for around $150,000 in September or October 2021. The sale proceeds went to pay for a wedding and house and garden improvements. The sale proceeds were spent in their entirety.

Post hearing submissions

The Applicant’s post hearing submissions did not advance further substantive contentions.

Respondent’s submissions and evidence

The Secretary contends that:
(a)The Applicant received payments of AGP in excess of his entitlement in the period 19 October 2017 to 7 October 2020;
(b)These excess payments are a debt due to the Commonwealth; and
(c)The Respondent contends that there is no basis to either write-off recovery of the debt or waive part or all of the debt on the basis of sole administrative error or special circumstances as per sections 1236, 1237A and 1237AAD of the Act (Exhibit 2, p 4, at [20])
As indicated in paragraph 22 of these reasons, the Applicant’s concession on issues (a) and (b) (as they are contained within paragraph 3 of these reasons) results in common ground between the parties on both points. Accordingly, it is unnecessary for me to repeat the Respondent’s submissions on these points here.

Write off of debts

The Respondent contends that the Applicant does not satisfy section 1236 of the Act. (Exhibit 2, p 8 at [46]-[48]):
(a)The Respondent contends there is no evidence the debt is irrecoverable at law, the Applicant’s whereabouts are known and it is cost effective to recover the debt;
(b)The Respondent further contends that the Applicant does have capacity to repay the debt, as evidenced his ongoing voluntary repayment plan of $100 per month that has been in place since January 2022 (Exhibit 3, ST6, p 61);
(c)The Respondent also notes there is no evidence before this Tribunal that this ongoing repayment plan is causing the Applicant severe financial hardship.
In the foregoing circumstances and also noting that the Applicant still has the benefit of his wife’s QSuper account based pension payments, the Respondent submits that there is no basis to write-off recovery of the Applicant’s debt pursuant to section 1236 of the Act.

Waiver of debts

‘Sole’ administrative error

The Respondent contends that no part of the AGP debt is attributable solely to administrative error for the following reasons (Exhibit 2, p 9-11 at [55]):
(a)Pursuant to subsection 66A(1) of the Administration Act, the Applicant, having had his AGP claim granted was under an obligation to inform the Agency of any event or change in circumstances that could have affected the payment of his AGP;
(b)Prior to the debt period the Applicant was issued multiple notices by the Agency pursuant to subsection 68(2) of the Administration Act which put him on notice that he was required to advise the Agency within 14 days of a relevant change in his or his partners circumstances, with listed examples of these changes in circumstances including the receipt of income from an income stream product (Exhibit 3, ST2, p 13-15, ST3, p 16-24);
(c)A number of Tribunal cases have established that if a person fails to comply with a notice given under subsection 68(2) of the Administration Act and/or correct any error therein, then there can be no sole administrative error.
In Barnes and Secretary, Department of Social Services [2014] AATA 786, the Tribunal held at [43]-[50]:
The Secretary accepts that until 22 September 2010, it was Centrelink’s error alone that caused that part of the debt (which was waived by the ARO). From that time, the Secretary contends, Ms Barnes contributed to the debt by not providing information in response to Centrelink’s information notices. Ms Barnes contends that she provided the correct information at the outset and that information was updated for FTB and CCB purposes.
Sole administrative error does not require that Centrelink made no mistakes, but that the debtor made no contribution to the error. When Centrelink sent out an information notice on 20 September 2010, it included a requirement that Ms Barnes advise when her partner’s income went above $800 per fortnight, a figure it was already above. Ms Barnes does not remember reading that, and she suggests that not all letters arrive at a country address. Further, she suggests that she was under the impression that if her partner’s income stayed below $42,000 annually her benefit would be unaffected. I do not accept Ms Barnes’s explanation. The figure of $42,000 has no obvious source, and that Ms Barnes mistakenly believed it to be the figure at which the benefit would be affected has no bearing on my decision. Letters do go astray from time to time, but rarely, and surely not all the letters from Centrelink did so. As the respondent points out, under ss 28A and 29 of the Acts Interpretation Act 1901, Ms Barnes is taken to have received them. Ms Barnes seems to have treated the information notices, whether she did not read them, read them cursorily or read then carefully, with blithe disregard. After Centrelink began to send them out in September 2010 Ms Barnes became a contributor to the error.
Ms Barnes’s argument treats the receipt of Centrelink benefits as a form of ‘set and forget’ arrangements in which the onus of calculating and delivering benefits was entirely on Centrelink’s shoulders. That is not how the social security system operates: it is a system of mutual entitlements and obligations. A person may establish that they have entitlements, but the entitlements come with obligations, central among which is the obligation to keep Centrelink informed. Ms Barnes did not do so – indeed she seems to have made no effort at all to do so – and the overpayment is the result of that inactivity.
I find therefore that the error was not the sole administrative error of Centrelink from the time of the first information notice. That notice was sent out on 20 September 2010 and it required Ms Barnes to inform Centrelink within 14 days of the various matters detailed. Ms Barnes defaulted on that obligation when those 14 days were past that is on 4 October 2010. Under s 100 of the Administration Act, the matter she was obliged to tell Centrelink about – her partner’s income – would then have been applied to the calculation of the payment not from the time it was notified but from the time it was relevant, that is from the start of the payment of PPP. But s 1027A of the Act requires that the decision-maker must waive the proportion of the debt that arose from Centrelink’s administrative error alone. That error continued up to the time of Ms Barnes’s default, and the debt should be waived up to 4 October 2010.
In Stafford and Secretary, Department of Social Services [2018] AATA 2746, the Tribunal stated at [78]-[79]:
...It is at least arguable that, had the Applicant fully complied with the reporting requirements imposed on him, the debt for which he now finds himself liable might not have accrued. Without further evidence it is ultimately impossible to determine if this would have been the case. However, it is certainly not the case that, given his failure to comply with the reporting requirements made clear in the notices sent to them, the debt in question can be blamed solely on an administrative error on the part of the Commonwealth.
In the circumstances, section 1237A of the Act has no application to the facts of this case and the debt in question cannot be waived under section 1237A of the Act.
(d)Despite being subject to the notification obligations of subsection 66A(1) of the Administration Act, and the provision of multiple notices to the Applicant outlining his obligation requirements, there is no evidence the Applicant advised the Agency of his wife’s purchase of the income stream product until September 2020; and
(e)The Applicant has conceded in his evidence to the AAT1 that he did not contact Centrelink to advise of his wife’s purchase of the income stream product, with the AAT1 decision at paragraph [15] stating:
[The Applicant] acknowledged that he did not contact Centrelink to ascertain whether his wife’s acquisition of the income stream would affect his age pension. She acquired the income stream in October 2017. He said he expected Centrelink to automatically receive details of the income stream in February 2018.
Accordingly, the Respondent submits that the Applicant’s AGP debt is not attributable solely to an administrative error made by the Commonwealth, but rather the Applicant’s failure to advise the Agency of the relevant change in circumstances that was communicated to him via the various subsection 68(2) notices sent prior to the debt period (Exhibit 2, p 11 at [56]).
The Respondent’s Statement of Facts, Issues and Contentions (Respondent’s SFIC) states that at paragraph [15] of its decision, “the AAT1 found that the Agency had made a contributory administrative error from February 2018 onward after the AAT1 mistakenly considered the Agency had failed to record details of the Applicant’s partner’s income stream forwarded from QSuper.” The Respondent contends that this “in fact never occurred” (Exhibit 2, p 11 at [57]).
The Respondent’s SFIC further states that:
…the Applicant’s contention is he was advised by QSuper at the time he and his partner purchased the income stream product that QSuper would advise the Agency every six months of the relevant income stream products details and that the Applicant relied on this representation from QSuper going forward from October 2017. The AAT1 mistakenly considered that the Agency, upon receipt of this information from QSuper (which in fact never occurred) did not properly record it on the Applicant’s record. (Exhibit 2, p 11 at [58])
The Respondent further vehemently propounded the foregoing submissions at the Hearing:
MR SUMMERS:…So, from the outset those paragraphs there from paragraph 57 consider or contend that the AAT1 has mistakenly considered that the agency, upon receipt of the information from QSuper, which in fact never occurred
…
MR SUMMERS: It is [the Respondent’s] position that that [QSuper account data] transfer [from QSuper to the Agency] did not occur. The advice that [the Applicant] has received has come from QSuper. At no point in the evidence before the tribunal or in his evidence today has he said that he went to [the Agency] to seek guidance about this information or to advise of the change in his wife’s pension arrangements until September 2020, almost three years after that initial change had occurred in October 2017.
Now, I could recite those paragraphs in the submissions, Member, if it would assist the tribunal.
…
MR SUMMERS: So I’ll start from our paragraph 57 [of the Respondent’s SFIC].
…
MR SUMMERS: So:
The Secretary also acknowledges that at paragraph 15 the AAT1 founded the agency had made a contributory administrative error from February 2018 onward after the AAT1 mistakenly considered the agency had failed to record details of the applicant’s partner’s income stream forwarded from QSuper, which in fact never occurred. As the Secretary understands it the applicant’s contention is that he was advised by QSuper at the time he and his partner purchased the income stream product that QSuper would advise the agency every six months of the relevant income stream products details, and that the applicant relied on this representation from QSuper going forward from October 2017. The AAT1 mistakenly considered that the agency, upon receipt of this information from QSuper, which in fact never occurred, did not properly record it on the applicant’s record. The Secretary firstly notes that QSuper was not the appropriate body to receive advice from in relation to the applicant’s ongoing aged pension arrangements and overall Social Security matters. Furthermore, the applicant should have sought that advice from and notified the agency -
The agency being Centrelink -
of relevant changes in his circumstances as communicated to him in the multiple section 68(2) notices sent to him. The applicant’s obligation to advise the agency was personally his alone and could not be passed off to a third party or otherwise abrogated even if QSuper had advised him to the contrary.
Now, there’s two cases referenced there, Member, the case of Saab v Secretary Department of Education, Skills and Employment, and on the following page the matter of Close v Secretary Department of Social Services. Those cases were included in the submissions…
…
MR SUMMERS: on the basis that the applicants in those matters were making contentions that the agency, Centrelink, had a responsibility to keep track or be advised of what was going on and to police, effectively, to be a safety net for an applicant. Both those decisions found that that is not Centrelink’s responsibility. I will quote directly from Senior Member Puplick in Saab that point that is bolded that:
The Department has no responsibility to ‘police’ the behaviour of benefit recipients, rather the obligation lies on the recipients to ensure and maintain conformity with the benefit conditions or requirements, especially when benefits are paid directly to a recipient, but it also applies when the recipient knows that payments are being made to third parties.
I believe this is in relation to a matter where payments were forwarded to a third party, but the Secretary contends that the effect there is sustained, the Department doesn’t bear a responsibility to police. It sits with the applicant or the person to be aware and consistently engaging with those notification obligations.
Senior Member Puplick on the next page then comments that:
It is accepted that sole administrative error cannot arise where an applicant has failed in their personal statutory duty to report relevant matters to the Department. (Transcript, p 26, lines 4-47, p 27, lines 1-47, p 28, lines 1-4).
Additionally, the Respondent noted that as at 18 October 2017 (the day prior to the purchase of the income stream product), the Applicant’s partner’s superannuation product was in the accumulation phase and she was under age pension age. In those circumstances the Respondent says that the Applicant’s partner’s superannuation account was disregarded for the purposes of the AGP pensions asset test and not capable of being recorded as an asset on the Applicant or his partners records to facilitate such a data sharing arrangement:
This was confirmed and communicated to the Applicant by the Agency in a contact with the Applicant on 27 July 2021, in which an officer advised the Applicant that QSuper could not provide details to the Agency as the Agency had no record of his partner’s income stream product details to align with. (Exhibit 2, p 12 at [61]).
At the Hearing, the Respondent took the Tribunal to a 27 July 2021 contact file note:
MR SUMMERS: So at the very bottom there you’ll see a:
TXT out of per doc dated 12/10/20 CANASF debt sent to investigation. Customer advises he was told by QSuper that they provide updates to [the Agency] every six months and he did not need to do anything. Appeal request states customer updated assets on MyGov regularly. He notified [the Agency] that the super fund was updated manually very six months.
Et cetera.
Nothing located in scanned image or doc list from December 2017 to March 2020. Can decision be changed? No.
And now this is the relevant communication with a service officer with the applicant. This is an annotation by KHP510, that is a log on code.
MEMBER: Yes.
MR SUMMERS: So my understanding is that’s probably the officer who spoke with Mr Thomas on 27 July 2021:
Called customer on mobile 11.30 am and discussed reason for appeal. Customer advised his partner changed her superannuation details through the super fund to QSuper and was advised they would provide [the Agency] with details of income stream changes every six months. At this time, no form was given to customer to provide to [the Agency] for income stream product to be updated with us.
Us being [the Agency]:
Advised customer super fund could not provide details to [the Agency] as we had no record of partner’s details for them to align with on our end.
I am not a service officer, Member, so I can’t comment on how that would occur or how this happens internally but my guidance is taken from this service officer here who appears to have some expertise with what’s going on here, but ‑ ‑ ‑
MEMBER: But, Mr Summers, surely you’d concede that [the Agency] did in fact have [the Applicant’s] partner details, because [the Applicant] would’ve provided his partner details when he made an application for the aged pension. If what you’re actually saying is that [the Agency] does not have details of his partner’s QSuper account that’s something else, but it would not be accurate to say that [the Agency] did not have his partner’s details though, would it?
MR SUMMERS: Yes, I think that might be a shorthand from the officer. What was required, as I take that file note, is that for the data link to occur, [the Agency] in the first instance would have needed to know that product, and [the Applicant] has given evidence today that he’s accepted that from the purchase of that product on 19 October 2017 the earliest he notified [the Agency] personally was September of 2020, some three year period. (Transcript, p 28, lines 30-47, p 29, lines 1-47).
The Respondent’s SFIC states that the Respondent maintains their contention that the Agency has not made any administrative error in this matter:
Until the 19 October 2017 income stream purchase date the Applicant’s partner’s superannuation account was not an assessable asset. From 19 October 2017 the Applicant’s partner then held an income stream product which was an assessable asset, and it is not in contention that the Applicant did not advise the Agency of the purchase of that product until September 2020. While the Applicant has relied on the representation from QSuper, the Secretary submits that is clear on the evidence before the Tribunal that the debt is solely attributable to the Applicant’s failure to advise the Agency of the relevant change in circumstances on 19 October 2017. (Exhibit 2, p 13, [65].

Post hearing submissions

The Respondent’s post hearing submissions indicate that, after a review of Agency’s records in relation to the data link and information shared between QSuper and the Agency, the Agency did in fact receive data about the Applicant’s partner’s income stream from QSuper. The Respondent concedes that the Agency first received information about the Applicant’s partner’s income stream from QSuper in February 2018, and then progressively every six months from that first receipt.
The Respondent contends that the Agency was not in a position to ‘code’ the income stream on the Applicant and his partner’s internal Agency records because the Applicant did not advise the Agency of his wife’s QSuper account product purchase on 19 October 2017:
… the consequence of the income stream not being coded on the Applicant and his partner’s records was that the data received from QSuper was not able to be ‘matched’ with any existing data or superannuation products. If the product was coded on the record, these ‘matches’ would have enabled the progressive updating of the product balances. This is reflected by the first successful ‘match’ occurring in February 2021 after the income stream was coded in October 2020 after the Applicant first advised the Agency of its commencement.
Additionally, … any data that is not matched is deleted after 90 days due to Agency privacy requirements, and the internal Agency correspondence reports that there is no manual review of the non-matched data.
…
The relevant data selection was regarded as a ‘non-customer partner’ as the Applicant’s partner was not in receipt of an income support payment from the Agency. Therefore the information was not reviewed by the Agency.
Despite the above acknowledgment, that the Agency did receive information via the QSuper data link, the Respondent contends that no part of the debt under review is attributable to sole administrative error, in the circumstances where a person has failed to comply with the obligations and duties imposed on them by a subsection 68(2) notice (see: Barnes and Secretary, Department of Social Services [2014] AATA 786 and Stafford and Secretary, Department of Social Services [2018] AATA 2746).

The Respondent contends that QSuper was not the appropriate body to receive advice from in relation to the Applicant’s ongoing AGP arrangements and overall social security matters. Furthermore, the Respondent says that the Applicant should have sought that advice from, and notified the Agency of relevant changes in his circumstances as communicated to him in the multiple subsection 68(2) notices sent to him. The Respondent submits that the Applicant’s obligation to advise the Agency was personally his alone, and could not be passed off to a third party or otherwise abrogated – even if QSuper had advised him to the contrary.

Special circumstances waiver

In relation to the special circumstances waiver in section 1237AAD of the Act, the Respondent made the following submissions:
(a)the Respondent accepts the Applicant’s contentions that:
(i) he acted in reliance on the advice he received from QSuper; and
(ii) his AGP debt did not result from him knowingly making a false statement, false representation or from knowingly failing or omitting to comply with his notification obligations;
(b)there is no evidence to suggest the Applicant’s circumstances in their totality are distinguishable to such an extent that they could be considered “special circumstances” enlivening waiver;
(c)the evidence provided by the Applicant to the Agency and to the AAT1 indicates that in the 2015 – 2017 period he has transferred approximately $575,000 from ILKM, (his own self-managed super fund) to his wife’s superannuation account which then became the relevant QSuper account based pension - the Applicant cannot disavow his ownership of that $575,000 sum by transferring the funds into his wife’s account and agrees with the AAT1 who found that the Applicant still retained an equitable interest in those funds (at the same time the Respondent is not contending that there is a suggestion that the Applicant knowingly structured his affairs in such a way to obtain a Social Security advantage (Transcript, p 23, line 40-42);
(d)the Applicant has an equitable interest in the family home owned by his wife given the probable contributions he has made to the property since its purchase in 2001;
(e)there is no objective evidence before the Tribunal in relation to the Applicant’s medical or other personal or family circumstances that would ordinarily be considered by the Tribunal as part of a wider consideration of ‘special circumstances’
(f)the Applicant holds a number of real and equitable assets that he is currently using for both his regular expenses and for the ongoing debt repayments. These assets are of such a significant value that they could be realised to discharge a significant amount if not all of the debt;
(g)the Applicant also lives in secure, owned accommodation, with his and his partner’s expenses met by the ongoing payments from the QSuper account based pension, and there is no objective evidence before the Tribunal going to any other factors ordinarily considered as part of a special circumstances determination;
(h)the Applicant’s circumstances are compared to those of others either in receipt of or reliant on income support payments, it cannot be said that they are distinguishable such to the extent that they could be considered ‘special circumstances’ enlivening waiver (Exhibit 2, p 13, [69] pp 14-15, [74]-[77], [79]-[82]).
In summary, the Respondent contends that the Applicant does not have “special circumstances” enlivening waiver as per section 1237AAD of the Act. The Applicant has received the benefit of funds to which he had no entitlement and the Respondent submits there is no injustice in requiring the Applicant to repay that subsequent debt (Exhibit 2, p 15, [83]).

Post hearing submission

Additionally, the Respondent’s post hearing submissions contend that the circumstances regarding the Agency’s receipt of the QSuper data link information do not constitute special circumstances enlivening waiver.
The Respondent accepts that the Agency did receive data link information from QSuper, however, because the Applicant did not advise of the relevant change in circumstances, the data received from QSuper was ‘unmatched’. This ‘unmatched’ data was received alongside other datasets from thousands of other Centrelink recipients every six months, but because it was ‘unmatched’ it did not automatically transfer through to the Applicants and his partners records for updating.
Additionally, due to the classification of the data, the Respondent says that no further reviews of the information were undertaken on the basis of the Agencies’ strict privacy requirements, and the data was then also deleted on the basis of those privacy requirements.
The Respondent considers that it would be disproportionately onerous to require the Agency to commit resources to consistently review this ‘unmatched’ information from thousands of Centrelink recipients, beyond the processes it already has in place, to attempt to identify potential errors in a person’s rate of payment in the circumstances where that person had already failed in their statutory obligation to notify the Agency of a change in their circumstances.
Accordingly, the Respondent contends that this factor also is not a special circumstance enlivening waiver and maintains his overall contention that there is no basis to waive the debt under review.

consideration

In considering the issues before this Tribunal, I have had regard to the extensive evidence and submissions placed before it, in writing and made at the Hearing.

Respondent’s conduct before the Tribunal

Before setting out my consideration in detail, I consider it necessary to say something about the Respondent’s conduct throughout the course of the matter before this Tribunal.
Before the AAT1, the Applicant gave evidence about QSuper’s provision of his wife’s QSuper account data to the Agency. In particular, the Applicant said that QSuper issued the relevant data to the Agency periodically from February 2018. The AAT1 accepted the Applicant’s evidence and made certain findings about the same:
[the Applicant] acknowledged that he did not contact Centrelink to ascertain whether his wife’s acquisition of the income stream would affect his age pension. She acquired the income stream in October 2017. He said he expected Centrelink to automatically receive details of the income stream in February 2018. Apparently, that did not occur. Notwithstanding [the Applicant’s] detailed written submissions to Centrelink on the issue, Centrelink has not disclosed why that did not occur, even though the issue is relevant to the potential waiver of the recovery of the debt. I will proceed on the basis that Centrelink received updated details of [the Applicant’s wife’s] QSuper accounts in February 2018 but, due to Centrelink administrative error, it did not properly record those details. The portion of the debt referrable to the period from 19 October 2017 to February 2018 is entirely attributable to the fact that [the Applicant] did not inform Centrelink of the increase in his wife’s income, and therefore his combined income. The portion of the debt referrable to the period from February 2018 onwards is partly attributable to [the Applicant’s] omission and it is partly attributable to Centrelink’s administrative error. (emphasis added) (Exhibit 1, T2, p 6 at [15])
In response to AAT1’s findings, the Respondent, before this Tribunal, in both their SFIC and in their oral submissions, categorically rejected the AAT 1’s conclusion and denied, as a matter of fact, that the Agency had ever received the QSuper account data. This was despite the Applicant maintaining his evidence about the QSuper datalink at the Hearing.
In light of the parties’ positions, I directed the parties to prepare post Hearing written closing submissions to address the Applicant’s oral evidence to this Tribunal. To my surprise, the Respondent’s submissions concede that the Agency would have first received information about the Applicant’s wife’s income stream from QSuper in February 2018, and then progressively every six months from that first receipt. The same submissions also concede that the Agency did not review or match the data to the relevant customer account profile.
This brings me to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act). This section imposes several obligations on the original decision-maker, including a requirement to file a SFIC and lodge copies of relevant documents that are in its possession or under its control. This obligation complements the broader obligation that the decision-maker assist the AAT to make its decision, found in subsection 33(1AA). In Re Hungerford and Repatriation Commission (1990) 21 ALD 568, a Full Tribunal, with reference to section 37, approved the following statement at 577–578:
The Tribunal must be given assistance by respondents. The Tribunal has no personal knowledge of relevant facts and is not in a position to make its own searches. The Tribunal proceeds by way of a hearing at which parties are represented. Justice will not be done to applicants unless respondents, who are aware of the facts, or who readily can ascertain the facts, bring to the notice of the Tribunal all matters which the Tribunal ought to take into account. The review procedure will not function fairly unless respondents freely disclose to the Tribunal all the information which they have concerning the documents to which the applicant seeks access. If there are facts known to the respondent which are not known to either the applicant or the Tribunal, how is the Tribunal to be made aware of those facts unless they are disclosed to it by the respondent? The Administrative Appeals Tribunal Act 1975 provides that in every case the decision-maker is to be a party to the review: see s 30. This provision is not aimed solely at permitting a decision-maker to defend his or her decision. Part of its aim is to ensure that the Tribunal is fully informed. (emphasis added)
In my view, the Respondent has not duly complied with their obligations under section 37 of the AAT Act. It is apparent that the Respondent did not, despite the Applicant’s documentary evidence and the AAT1’s findings, properly review its internal records and procedures on the QSuper datalink. The Respondent’s failure to do so resulted in a SFIC and submissions to this Tribunal that were, in part, erroneous. The AAT1’s findings should have prompted the Respondent to carefully review the relevant Agency information under its control and disclose the same to the Tribunal and the Applicant in their SFIC. It should not have taken two hearings before the Tribunal (AAT1 and this Tribunal), together with accompanying submissions, for the Respondent to properly identify information and concede facts that were known by the Respondent at the beginning of the process. Overall, this is a case in which the Respondent’s conduct falls short of their obligations under section 37 of the AAT Act. The same view also applies to the Respondent’s model litigant obligations in this case.
I now turn to the substantive issues in this case.
The Federal Court of Australia has expressed its view, with which I respectfully agree, that money paid by taxpayers to individuals who are not entitled to it should be recovered. In Secretary, Department of Social Services v Hales (1998) 82 FCR 154 at 155, Justice French, as he then was, stated:
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.
I have already indicated that the Applicant concedes that he was paid in excess of his correct entitlement to AGP in the period 19 October 2017 to 7 October 2020. The Applicant also concedes that this overpayment constitutes a debt to the Commonwealth. It follows that the issues for my consideration now are whether the recovery of debt should be put on hold for a period of time (written off) or no longer pursued (waived).

Write off of debts

Section 1236 of the Act gives the Respondent power to write off the debt for a stated period or otherwise, if one or more of the four prerequisites in subsection 1236(1A) have been met.
In my view there is no evidence before this Tribunal that the Applicant’s debt is irrecoverable at law, the Applicant’s whereabouts are known, and it is cost effective to recover the debt.
The Respondent contends he has no capacity to repay the debt as he has no money, no assets and no income. He says that recovery of the debt would result in his suffering severe financial hardship. I do not accept the Applicant’s contention. In my view (and I find that) the Applicant clearly does have capacity to repay the debt, as evidenced his ongoing voluntary repayment plan of $100 per month that has been in place since January 2022. The Applicant provided no evidence to this Tribunal that this ongoing repayment plan is causing him severe financial hardship, that is financial suffering of a severe or extreme nature. The Applicant’s living expenses appear to be completely covered by his wife. Separately, the Applicant’s evidence is that his wife provides him with “spending money” from her QSuper account based pension. The corollary is that the Applicant appears to have the benefit, at least in part, of his wife’s QSuper account based pension. Overall, I do not see any basis under section 1236 of the Act to write-off recovery of the Applicant’s debt.

Sole administrative error

Section 1237A of the Act requires the Commonwealth to waive the right to recover a debt if it is attributable solely to administrative error by the Commonwealth and the person has received the payments in good faith. The Applicant’s evidence is that he received the AGP in good faith. The Respondent also contends, and I agree (and find), that the Applicant received the AGP in good faith but only for the period from October 2017 to September 2020, when the Applicant communicated the details of his wife’s QSuper account to the Agency.
The next issue is whether the Applicant’s AGP debt is attributable solely to administrative error by the Commonwealth.
It is common ground between the parties that subsection 66A(2) of the Administration Act requires the Applicant, having had his AGP claim granted, to inform the Agency of any event or change in circumstances that could have affected the payment of his AGP. It is also common ground that prior to the debt period, the Applicant was issued multiple notices by the Agency pursuant to subsection 68(2) of the Administration Act which put him on notice that he was required to advise the Agency within 14 days of a relevant change in his or his partners circumstances. The QSuper account based pension falls squarely in the listed examples of these changes in circumstances required to be reported to the Agency.
The Applicant says that he was advised by QSuper at the time his wife purchased the QSuper account based pension that QSuper would advise the Agency every six months of the relevant income stream products details. The Applicant says that he relied on QSuper’s representation about the same from October 2017. I accept the Applicant’s evidence. It is now common ground between the parties that QSuper did indeed share the relevant QSuper account with the Agency in the manner described above.
The Respondent argues that it was inappropriate for the Applicant rely on QSuper for what the Respondent calls “advice” in relation to the Applicant’s “ongoing AGP arrangements and overall social security matters”. In this context, I think a distinction must be drawn between, on the one hand, what the Respondent calls “advice” and, on the other hand, the provision of account data under the QSuper data link. QSuper is a government superannuation fund, regulated by applicable Commonwealth agencies. To my mind, it is not unreasonable for the Applicant to expect that QSuper would accurately describe the scope and regularity of its account holder data sharing with the Agency, and to share data in the manner represented. To be sure, as I have already found, QSuper did indeed share the Applicant’s wife’s QSuper account data with the Agency in the manner represented. The Applicant’s expectations appear to have been well founded. However, the Applicant’s reliance upon the advice of QSuper did not and does not displace his obligation to advise the Agency of a change to his circumstances.
The Respondent concedes that the Agency did not record the QSuper data on the Applicant’s record. It offers the explanation, which I accept, that the Agency was not in a position to ‘code’ the income stream on the Applicant and his partner’s internal Agency records. The Respondent contends, and I find, that the Agency’s inability to ‘code’ and ‘match’ the QSuper account data stems from the Applicant’s failure to comply with his notification obligations as set out above. I agree with the Respondent’s submission that it would be disproportionately onerous to require the Agency to commit resources to consistently review ‘unmatched’ information Ultimately, the Agency’s systems and processes can only work effectively if AGP recipients play their part in fulfilling their legal obligations.
The Tribunal has had occasion to consider similar fact patterns in the past. In the matter of Close and Secretary, Department of Social Services [2021] AATA 4678 (Close), in which the Tribunal stated at [25] and [31] that:
Ms Close gave evidence that she does not completely read the Centrelink letters that she receives and that she only looks to see the amount at the top of the letter showing what she will be paid. The Tribunal accepts that Ms Close does not read the remaining parts of the letters. However, the Tribunal notes that clear instructions are given on those letters to read them carefully and requesting that the recipient contact Centrelink to update the income and other information on them if that information has changed. The fact that Ms Close failed to read the letters relating to her CP payments and failed to update the income information, and Ms Close’s misunderstanding that her husband’s gross income, instead of his net income, should have been quoted, are both errors on Ms Close’s part (and are not errors on the part of the Commonwealth), which have resulted in the overpayments of CP being made.
Ms Close considers that Centrelink should have identified the problem much earlier than they did and fixed the issue from the start of the Debt Period. The Tribunal does not agree with Ms Close in this regard and instead considers that she should have exercised more care in reading important Centrelink correspondence received by her and that she should have corrected, and continuously updated, the income information she was notified was being used to calculate her CP payments. (emphasis added)
I agree with the findings of the Tribunal in Close, and specifically find that, in accordance with Close, the Applicant’s failure to update and notify the Agency of listed changes in circumstances are errors on his part that has resulted in the overpayments of AGP being made to him. Accordingly, I find no part of the AGP debt under review is attributable to sole administrative error.

Special circumstances waiver

Section 1237AAD of the Act allows for all or part of a debt to be waived in special circumstances. In my view, the Applicant did not agitate, nor is there any other substantive materials before this Tribunal in relation to his personal, medical or other family circumstances that are likely to amount to ‘special circumstances’ enlivening a finding under section 1237AAD of the Act. Separately, I do not consider the Agency’s failure to ‘code’ the data received from QSuper to be a ‘special circumstance’ enlivening waiver.

Summary

Based on the evidence before the Tribunal, this Tribunal finds that:
(a)the Applicant’s AGP debt of $53,831.37 for the period 19 October 2017 to 7 October 2020 was correctly calculated and is a debt owed to the Commonwealth;
(b)the requirements of sections 1236, 1237A and 1237AAD of the Act are not met; and
(c)the Applicant’s AGP debt is recoverable in full.

Accordingly, the decision under review is affirmed.

I certify that the preceding 93 (ninety-three) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin

.............................[SGD].............................

Associate

Dated: 20 February 2023

Date(s) of hearing:	22 August 2022
Date final submissions received:	20 September 2022
Applicant:	In person
Solicitors for the Respondent:	Andrew Summers (Services Australia)

[2023] AATA 192

24 January 2023

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Remedies