Thurling and Secretary, Department of Social Services (Social services second review) - [2019] AATA 3

Thurling and Secretary, Department of Social Services (Social services second review) [2019] AATA 3 (4 January 2019)
Division:GENERAL DIVISION
File Number: 2017/5772
Re:Darlene Thurling
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:4 January 2019
Place:Brisbane

The Tribunal sets aside the decision under review and substitutes it with a decision that the debt arising from overpayment of the Newstart Allowance is written off for a period of six (6) months pursuant to section 1236(1) of the Social Security Act 1991.
...........................[SGD].................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – Newstart allowance – overpayment – where applicant did not notify of change of circumstances – where no administrative error – where no special circumstances – whether cost effective to recover the debt – whether debt should be written off for a period - decision under review set aside
LEGISLATION
Social Security Act 1991
Social Security (Administration) Act 1999
CASES
Beadle and Director-General of Social Security (1984) 6 ALD 1
Director General of Social Services v Hales [1983] 47 ALR 281
Re L and Department of Social Security [1995] AATA 226
Secretary, Department of Social Security v Hales (1998) 82 FCR 154
Secretary, Department of Family & Community Services v Sekhon [2003] FCA 76
Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190
REASONS FOR DECISION
Member D K Grigg
04 January 2019
INTRODUCTION

Ms Thurling was an intermittent recipient of the Newstart Allowance (“NSA”) between July 2004 and 4 May 2018. Ms Thurling’s NSA was suspended on 4 May 2018 due to her failure to attend an appointment.[1]
[1] Exhibit 1, T Documents, T123, pages 484-485, Centrelink records.
Throughout the period of 2010 and 2014, Ms Thurling was sent numerous notices by the Department of Human Services (“Centrelink“) setting out:[2]
(a)the amount of NSA payable to her;
(b)the income on which Centrelink was calculating payments; and
(c)that she had an obligation to notify Centrelink if her circumstances changed (in particular if she earned any income) or if any of the information that Centrelink was relying on was incorrect.
[2]Exhibit 1, T Documents, T4 – T 112, pages 72 - 424, Centrelink notices sent to Ms Thurling between 15 June 2011 and 27 June 2014.
Centrelink became aware on 4 August 2016, as a result of a data match undertaken with the Australian Taxation Office (“ATO”), that between 22 July 2010 and 27 June 2014 (“the Period”), Ms Thurling had received income from 14 different employers.[3] Attempts were made by Centrelink to contact Ms Thurling regarding the information obtained from the ATO but she failed to respond to the letters sent and did not answer any of the telephone calls made.[4]
[3] Exhibit 1, T Documents, T124, page 515, Centrelink record.
[4] Exhibit 1, T Documents, T124, page 515, Centrelink record.
As a result of the information obtained from the ATO, Centrelink performed a recalculation of Ms Thurling’s entitlements, actual and received.[5] Centrelink determined that Ms Thurling had been overpaid a total of $19,051.58 as follows (“NSA Debts”):
(a)$280.42 for the period 22 July 2010 to 4 August 2010;
(b)$6,210.67 for the period 8 December 2010 to 21 June 2011;
(c)$4,203.11 for the period 28 October 2011 to 8 March 2012; and
(d)$8,357.38 for the period 11 August 2012 to 28 June 2013.
[5] Exhibit 1, T Documents, T113 –116, pages 425 – 462, Debt information and calculation documents dated 29
September 2016.
On 29 and 30 September 2016, Centrelink sent notices to Ms Thurling advising her of the NSA Debts and informing her that they were immediately payable.[6]
[6] Exhibit 1, T Documents, T117 – T 120, pages 463 – 470, Centrelink notices dated 29 September 2016 and 30
September 2016.
Prior to Ms Thurling’s NSA being suspended on 4 May 2018, she had entered into an arrangement with Centrelink whereby she was to pay $80 per fortnight, through withholdings from her NSA payments towards the repayment of her debts.[7] Ms Thurling’s NSA has subsequently been cancelled and no repayments are being made because she departed Australia and is currently residing in Cambodia.
[7] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 18 May 2018, para 22.
The Secretary contends that during the Period Ms Thurling was overpaid NSA because she failed to declare all of the income she earned during that period.
Claims History
Ms Thurling requested a review of Centrelink’s decision to raise the NSA Debt on the grounds that:[8]
(a)she did not believe she had ever worked for some of the employers Centrelink had received information about;
(b)she suffers from anxiety and depression and that this process was setting her back;
(c)she usually stayed in employment for short periods of time and was often required to travel for work and live out of a suitcase so she did not have the option to keep records of pay slips or tax returns compared to other more fortunate people;
(d)it was her belief that it was Centrelink’s job to follow-up whether or not someone had conducted identity fraud on her and used her tax file number;
(e)Centrelink should have to prove that she worked for the employers rather than her having to prove she did not.
[8] Exhibit 1, T Documents, T121, page 476, ARO notes dated 10 November 2016.
Ms Thurling provided the Tribunal with a medical certificate dated 6 February 2018 which states that she has bipolar affective disorder.[9]
[9] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 18 May 2018, Annexure 1.
The Authorised Review Officer (ARO) affirmed the decisions to raise the NSA Debt and found no administrative error on the part of Centrelink nor any special circumstances which would justify waiving the Debts owed.[10]
[10] Exhibit 1, T Documents, T121, pages 471 – 477, Decision of Authorised Review Officer and notes dated
10 November 2016.
Ms Thurling then sought a further review on 6 April 2017.[11] The Social Services and Child Support Division (“SSCSD”) rejected Ms Thurling’s claim and affirmed the ARO’s decision on 24 August 2017.[12]
[11] Exhibit 1, T Documents, T 36, pages 237 – 238, Letter from AAT to Centrelink re-appeal dated 1
February 2016.
[12] Exhibit 1, T Documents, T2, pages 7 – 9, SSCSD’s Decision and Reasons for Decision dated 24 August 2017.
On 26 September 2017, Ms Thurling lodged an application for review of the SSCSD’s decision by this Tribunal.[13]
[13] Exhibit 1, T Documents, T1, pages 1 – 6, Application for Review dated 26 September 2017.
ISSUES FOR DETERMINATION
The issues for determination are whether:
(a)Ms Thurling has been overpaid her entitlement to NSA between 22 July 2010 and 27 June 2014; and, if yes
(b)the NSA Debts are recoverable; and
(c)the NSA Debts should be written off pursuant to section 1236 of the Social Security Act 1991 (Cth) (“the Act”); or
(d)the NSA Debts should be waived due to administrative error pursuant to section 1237A of the Act; or
(e)“special circumstances” exist such that the NSA Debts should be waived pursuant to s 1237AAD of the Act.
WAS MS THURLING OVERPAID NEW START ALLOWANCE PAYMENTS?
If a person is not entitled to the social security benefit they have obtained, the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.[14]
[14] Section 1223(1) of the Act.
The rate of NSA payable to a person is calculated using a benefit rate calculator at the end of section 1068 of the Act.[15] Module G of section 1068 of the Act provides a method statement for working out the effect of the person’s income on their maximum pay rate (“Income Reduction Amount”) and section 1068 – A1 of the Act provides a method statement for working out a person’s maximum payment rate and provides for the maximum payment rate to be reduced by the Income Reduction Amount.
[15] Section 643 of the Act.
ATO Information and Centrelink Data Match
In August 2016, the ATO provided Centrelink with the names of employers Ms Thurling worked for between July 2010 and June 2014 and the amount of earnings she had received from those employers.[16]
[16] Exhibit 1, T Documents, T121, page 473, ARO decision dated 10 November 2016; T124, pages 515-520, Data
match records.
The information provided by the ATO was based on information provided by those employers to the ATO setting out the income they had paid Ms Thurling during the relevant financial year periods.[17] For example, Centrelink received information from the ATO that:
(a)Ms Thurling was employed by Queensland Mobile Camp Pty Ltd on 4 October 2012 and that in the financial year ended 30 June 2013 she received gross payments of $3,208.00;[18] and
(b)Ms Thurling was employed by Lake Bennett Investment Unit Trust Pty Ltd in the 2014 financial year and earned gross payments of $2,743.00.[19]
[17]         Exhibit 1, T Documents, T124, page 515, Centrelink records of data match information received from ATO.
[18]         Exhibit 1, T Documents, T124, page 516, Centrelink records of data match information received from ATO.
[19]         Exhibit 1, T Documents, T124, page 516, Centrelink records of data match information received from ATO.
According to the ATO data match undertaken by Centrelink in August 2016:
(a)in November 2012, at the time Ms Thurling was employed by Queensland Mobile Camp Pty Ltd, Centrelink sent Ms Thurling a letter which indicated that her NSA was being calculated on the basis that her fortnightly income was $0.09.[20] Centrelink was not aware that Ms Thurling was employed by Queensland Mobile Camp Pty Ltd;
(b)Ms Thurling’s earnings from Lake Bennett Investment Unit Trust Pty Ltd in 2014 were not disclosed to Centrelink.[21] During this period, Ms Thurling was put on notice that her NSA was being calculated on the basis that her fortnightly income was $0.06.
[20] Exhibit 1, T Documents, T48, page 244, Centrelink letter to Ms Thurling dated 12 November 2012.
[21] Exhibit 1, T Documents, T124, page 516, Centrelink records of data match information received from ATO.
Centrelink was not aware that Ms Thurling was employed by Lake Bennett Investment Unit Trust Pty Ltd, and the other employers previously unaccounted for, until August 2016 when the ATO data match took place. The Secretary submits that these earnings should have been taken into account.
22 July 2010 to 4 August 2010
Based on the information received by Centrelink, between 22 July 2010 and 4 August 2010, Ms Thurling earned income from Sansabay Pty Ltd which resulted in an overpayment of $280.42.[22]
[22] Exhibit 1, T Documents, T113, page 425, Debt information.
8 December 2010 to 21 June 2011
Based on the information received by Centrelink, between 8 December 2010 and 21 June 2011, Ms Thurling earned income from Coconut Beach Resort, Outrigger Hostels & Resorts Australia, The Trustee for the McManus Family Trust and Sansabay Pty Ltd, which resulted in an overpayment of $6,210.67.[23]
[23] Exhibit 1, T Documents, T114, page 432, Debt information.
28 October 2011 to 8 March 2012
Based on the information received by Centrelink, between 28 October 2011 and 8 March 2012, Ms Thurling earned income from Compass Group (Australia) Pty Ltd and Ocean Hotels Pty Ltd, which resulted in an overpayment of $4,203.11.[24]
[24] Exhibit 1, T Documents, T115, page 441, Debt information.
11 August 2012 to 27 June 2014
Based on the information received by Centrelink, between 11 August 2012 and 27 June 2014, Ms Thurling earned income from Compass Group (Australia) Pty Ltd, Lake Bennett Investments Unit Trust, Queensland Mobile Camp, Blacks Beach Tavern, Top End Consulting, Cater Care Services, Eastern Care Services, Qld Coalfields Hotels and Outsource Personnel, which resulted in an overpayment of NSA totalling $8,357.38.[25]
[25] Exhibit 1, T Documents, T116, page 448, Debt information.
Ms Thurling told the Tribunal she does not accept she received the amounts declared by the employers to the ATO. Ms Thurling did not provide the Tribunal with any documentation to either support her contention that she had not been employed by the listed employers or to support her contention that the amounts she had received as income were incorrect.
Ms Thurling stated at the hearing that the employers mentioned by the Secretary were all “brand new” and she had not previously been aware of them. However, the employers were all identified in the ARO decision made 2 years ago.
Ms Thurling acknowledged that she had numerous jobs throughout the Period and said that because of her bipolar disorder she has difficulty holding down a job.
Centrelink sent numerous notices to Ms Thurling throughout the Period to a variety of different postal addresses. At the hearing, there was some confusion and disagreement from Ms Thurling regarding what her addresses had been. However, on the whole Ms Thurling did not dispute that she would have provided Centrelink with most of these address details. Ms Thurling told the Tribunal she could not remember exactly where she was living at all the relevant time periods but she acknowledged that she had at times lived in the locations of the addresses to which the notices were addressed. There is also evidence of where Ms Thurling’s Basics Card had been used during 2014 which matches up with the addresses on the notices which were sent to her at that time.[26] She said she could not remember if she received or read the Centrelink notices. Even if Ms Thurling did not receive or read the notices, she failed to notify Centrelink of the income she was earning.
[26] Exhibit 1, T Documents, T106, pages 402-404, Basics Card Transaction History.
Ms Thurling was adamant that she had never worked for Coconut Beach or Sansabay. She told the Tribunal that she had never been to those places of employment, never worked there and that someone told her Coconut Beach had been shut down since 2011. Ms Thurling said that Coconut Beach was in Cape Tribulation but Ms Forsyth informed the Tribunal that it is in Cairns and that Ms Thurling’s addresses at the relevant time indicated that she was in that area. The information from the ATO is objective evidence that Ms Thurling did work for Sansabay. Ms Thurling did not provide any corroborating evidence to indicate that she was working for someone else or was living in a different location or that the resort was not in operation at the relevant time. It is of course understandable that Ms Thurling does not have any records dating back to 2011 and that she may not recall all of her past employment details.
Ms Thurling disputed that she had worked anywhere for 12 months. Again, the information from the ATO is objective evidence of Ms Thurling’s earnings during the Period.
Ms Thurling said she left the Northern Territory on 26 January 2014 to go to Queensland and therefore between January and June 2014 she could not have earned money from Top End Consulting, Eastern Catering Services and Lake Bennett Wilderness Resort. However, the records provided by the ATO to Centrelink indicate to the contrary. Later in the hearing Ms Thurling acknowledged that she could have earned approximately $800/week for 3 weeks, which is not far off the sum declared by that employer - $2,743.00, from Lake Bennett Wilderness Resort.
When asked whether she disputed that she had worked for any of the other relevant employers, Ms Thurling said:
No because sometimes I have been that broke that I’ve thought “nah I’ll just have one more Centrelink”, I can’t afford to go off it…if I go off it I’m going to have no money. Sometimes you have to wait for your wages…
Ms Thurling has no payslips or other evidence to confirm the exact dates at each place of employment. The records available only show the amount earned for the financial year, not the exact dates of employment at each establishment. The records therefore do not mean Ms Thurling was working at Lake Bennett in June 2014, but only confirm that at some point during 2014, Ms Thurling received earnings totalling $2,743.00 from Lake Bennett Wilderness Resort.
Throughout the hearing, Ms Thurling would say she was not aware of all of the debts. At one point, when the period between 11 August 2012 and 27 June 2014 was being discussed she said “what $8,000 debt?” as if she was not aware of this debt. However, Centrelink sent Ms Thurling a notice of this debt on 31 October 2016.[27]
[27] Exhibit 1, T Documents, T120, page 469, Letter from Centrelink to Ms Thurling dated 31 October 2016.
I asked Ms Thurling if she informed Centrelink every time she changed employer and she said:
“probably not…if I wanted Centrelink I wouldn’t tell them anything. …I’d start working and then…I just wouldn’t report anymore, I’d just stop”
Ms Thurling was then warned by Ms Forsyth that if she continued to give evidence of that nature, the Secretary would make submissions that there was a knowing failure to comply with her notification requirements and that, therefore, there was no ground for the debt to be waived under s 1237AAD of the Act (discussed further below).
At this stage, Ms Thurling became agitated and thought Ms Forsyth had indicated she had bad manners. The Tribunal informed Ms Thurling that is not what was said and that she seemed to be giving evidence that she purposely failed to inform Centrelink of her earnings. Ms Thurling responded as follows:
I’ve already said that before. Sometimes I didn’t, sometimes I didn’t because I needed the money because I was broke. It’s not very nice being very poor when you’ve got no money…..
Ms Thurling then said her bipolar was about to kick in and she was upset. She ultimately said “you’re never going to get a [expletive] cracker out of me anyway, goodbye” and hung up the telephone.
CONSIDERATION
Ms Thurling has had in excess of 12 months since the SSCSD hearing to provide corroborating material to support her contentions. This hearing was also adjourned from May 2018 until today to allow her extra time. No further corroborating material was provided. Ms Thurling did provide some written submissions in which she states she is currently working in Cambodia as a teacher which provides her with a liveable income of approximately $200 per week.[28]
[28] Exhibit 3, Email from Ms Thurling to the Tribunal dated 9 November 2018.
The Tribunal empathises with Ms Thurling regarding her medical condition and can understand that she may have difficulty regulating her emotions and that it is very stressful for someone who has been homeless and has had other significant issues in their lives to be charged with a debt. However, Ms Thurling has not been able to produce any supporting evidence to contradict the information ATO provided to Centrelink. Ms Thurling has consistently said she did not work at Coconut Beach[29] and has not held a job for 12months. However, her primary evidence at the hearing was that she could not recall back that far in detail. The documents and records of the ATO are of more substantive weight in this situation.
[29] At the hearing, in her application for review and other written submissions.
Has Ms Thurling been overpaid?
Section 100(1) of the Social Security (Administration) Act 1999 (Cth) (“Administration Act”) provides:
Automatic rate reduction--recipient not complying with subsection 68(2) notice
(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, the rate of the social security payment is to be reduced;
the social security payment becomes payable to the person at the reduced rate on the day on which the event or change of circumstances occurs.

There is no dispute by Ms Thurling that she received at least some of the letters from Centrelink regarding her reporting requirements and obligations, therefore subsection 100(1)(a) is satisfied. Ms Thurling said that she was moving around a bit during the period. She did not dispute that she was fully aware of her reporting obligations to Centrelink.
The amounts received by Ms Thurling during the Period should have been reported to Centrelink therefore subsections 100(1)(b)-(d) are satisfied. Because of the income earned by Ms Thurling during the Period the rate of social security should have been reduced and therefore section 100(1)(e) is also satisfied.
Therefore, pursuant to section 100(1) of the Administration Act, Ms Thurling’s NSA can be retrospectively reduced for the period commencing 22 July 2010. Subsection 100(1)(e) is satisfied.
The NSA Debts have been raised because Ms Thurling was being paid NSA based on a certain level of income and, at some point, the ATO provided Centrelink with information indicating that Ms Thurling has earned more than they were aware of. As a result, Ms Thurling has been overpaid.
The Tribunal finds that Ms Thurling owes the NSA Debts to the Commonwealth.
IS THE NSA DEBT RECOVERABLE?
Even if a debt is owed, the Secretary may write off, or waive, a debt in certain circumstances set out in sections 1236, 1237A and 1237AAD of the Act.
Should the NSA Debt and Recovery Fee be Written Off? (s 1236(1A))
Section 1236 provides relevantly:
Secretary may write off debt
(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)...; or
(d)it is not cost effective for the Commonwealth to take action to recover the debt.
Is the debt irrecoverable at law? (s 1236(1A)(a))
Section 1236(1B) of the Act sets out when a debt is taken to be irrecoverable at law:
(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.
None of the circumstances in section 1236(1B) exist in this case and the NSA Debt is not irrecoverable at law.
Does Ms Thurling have capacity to repay the debt? (section 1236(1A)(b))
The Secretary submits that there is no evidence to suggest that Ms Thurling has no capacity to repay the debt[30] and she was, until May 2018, making repayments of $80 per fortnight.
[30] Secretary’s Response dated 13 December 2018, paras 8-10.
All that is known about Ms Thurling’s current ability to pay is that she says she receives $200 per week teaching in Cambodia. Ms Thurling is not currently receiving any social security payment and is making no repayments.
Subsequent to the hearing, Ms Thurling submitted that:[31]
I have absolutely no means to repay this debt (that I still do not agree I owe), I have no money, no car, no furniture, no nothing, I work here earning $200 a week and that just gets me by, supporting myself, I cannot come back to live in Australia as I will be homeless again, as I was for 12 months before I came here, only this time I wont have a car to live in and I find this very distasteful that an Australian citizen cannot afford to live in their own country.
…
I was going to go bankrupt but was told by centre link that would still not clear the debt, I offered jail time, still was told not an option, so suicide was my only option left and I came very close to that on several occasions, not that centre link cared one bit about that either.... i've been battling this issue for over 3 years...I have been poor all my life and as far as I can see I will remain that way for what’s left of my life.
[31] Email from Ms Thurling dated 2 December 2018.
Ms Thurling provided no documentary evidence to verify her current situation. Ms Thurling does not explain how she is able to live, feed, clothe and house herself on her current income in Cambodia to indicate that she has no capacity to recommence making instalments towards the repayment of the debt, however small. Without corroborating evidence to the contrary the Tribunal finds that Ms Thurling does have the capacity to pay.
Is it cost-effective for the Commonwealth to recover the debt? (s 1236(1A)(d))
The Tribunal has concerns about the cost-effectiveness of recovering the debt.
In Re L and Department of Social Security [1995] AATA 226, Mathews J (then President) referred to the following phrases used by the Full Court of the Federal Court in Director General of Social Services v Hales [1983] 47 ALR 281 as indicating “the type of financial considerations which are relevant to a decision of write off”:
“litigation would be futile and a waste of public funds because the prospective defendant is penniless”: at 307
“where there is no prospect whatsoever of recovering anything”: at 307
“throwing away good money after bad”: at 320
There is limited information regarding Ms Thurling’s financial circumstances. Ms Thurling is currently overseas which increases the cost of any enforcement proceedings.[32]
[32]The fact that a debtor was living overseas was also a factor taken into account in Frey v Secretary, Department of Family and Community Services [2005] AATA 667.
While the debt currently totals $20,737.33,[33] while she is in Cambodia no repayments are being made by Ms Thurling towards repaying the debt.
[33] Exhibit 1, T Documents, T123, page 480, Centrelink record.
The Secretary submits that Centrelink could contact Ms Thurling to arrange for an appropriate minimum repayment.[34] The Secretary provides no indication of how or why they consider Ms Thurling would come to any agreement with them while she is overseas. There is also no indication of how the NSA Debt could be enforced while Ms Thurling is out of the country. Ms Thurling made it clear at the hearing that she would not be repaying the debt voluntarily.
[34] Secretary’s Response dated 13 December 2018, para 13.
Ms Thurling also indicated she was concerned that if she returned to Australia she would not be allowed to leave again because of her Centrelink debt. It is unclear when Ms Thurling will return to Australia and there is no indication that Ms Thurling’s financial circumstances will improve in the short term.
In the circumstances the Tribunal agrees with the suggestion made the Secretary that writing off the debt for six months would be appropriate in the event that the Tribunal found section 1236(1A)(d) applied.[35] After this period of time, the Secretary may review the Applicant’s circumstances.
[35] Secretary’s Response dated 13 December 2018, para 14.
For completeness, it should be noted that the power to write-off “does not impact upon the liability of the person overpaid”.[36]
[36] Secretary, Department of Social Security v Hodgson (1992) 108 ALR 322, at 333; Re L and Department of Social
Security [1995] AATA 226, at [7].
Depending on Ms Thurling’s health and financial situation when she does decide to return to Australia, she may ask Centrelink to reconsider her repayment arrangements.
Conclusion
The NSA Debt should be written off for a period of six months under section 1236 of the Act.
Did Ms Thurling receive the overpayment in Good Faith and was the Debt, or a proportion of the Debt, attributable solely to an Administrative Error? (s 1237A)
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.[37]
[37] Section 1237A of the Act.
No Administrative Error
If administrative error was the sole cause for the debt arising, the Secretary must waive the right to recover the debt. The debt “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”.[38]
[38]Secretary, Department of Family & Community Services v Sekhon [2003] FCA 76, per Wilcox J (at [41]); and on appeal to the Full Federal Court in Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190, at [23].
A recipient of a social security benefit is under an obligation to notify Centrelink of any changes in circumstances that might affect the payment of the social security payment within 14 days after the day on which the event or change occurs.[39]
[39] Section 66A(2) of the Administration Act.
The Secretary may also give a person, to whom a social security payment is being paid, a notice requiring the person to inform Centrelink if a specified event or change of circumstances occurs.[40]
[40] Section 68(2) of the Administration Act.
As referred to earlier, Centrelink sent numerous letters to Ms Thurling setting out her obligations to notify Centrelink if there was any relevant change in her circumstances.
Those notices were addressed and sent to Ms Thurling’s relevant postal addresses.
The first time Centrelink became aware of Ms Thurling’s employment income was through a data match conducted with the ATO in August 2016.
Even if Ms Thurling was not aware of her obligations to actually notify the Department, ignorance of the legal requirements is not a special circumstance. “Centrelink is not required to advise claimants about their legal rights to any particular social security payment or the rate of payment”.[41]
[41] See Brian Magrath and Secretary, Department of Families, Housing, Community Services and
Indigenous Affairs [2010] AATA 115, at [17]; Ivor Biddlecombe and Secretary, Department of Families,
Housing, Community Services and Indigenous Affairs [2010] AATA 451; Barnard and Secretary, Department of Social Services [2016] AATA 436, at [47]; Scott v Secretary, Department of Social Security [1999] FCA 1774, and on appeal Scott and Another v Secretary, Department of Social Security [2000] FCA 1241.
The NSA Debts arose due to a failure by Ms Thurling to comply with the relevant notification requirements. As a result the NSA Debts owed by Ms Thurling were not ‘attributable solely to an administrative error made by the Commonwealth’ for the purposes of section 1237A(1) of the Act.[42]
[42] See Wecker v Secretary, Department of Education Science and Training[2008] FCAFC 108, at [102].
Should the NSA Debt and Recovery Fee be waived under section 1237AAD?
Further, the Secretary may exercise its discretion to waive the right to recover all or part of the debt pursuant to section 1237AAD which provides:
1237AAD Waiver in special circumstances
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a)the debt did not result wholly or partly from the debtor or another person knowingly:
(i)making a false statement or a false representation; or
(ii)failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c)it is more appropriate to waive than to write off the debt or part of the debt.
There are a few elements to be satisfied under section 1237AAD before a debt may be waived. First, the debt must not have arisen from the debtor, that is she must not have knowingly made a false statement or a false representation or knowingly failed or omitted to comply with a provision of the Act or the Administration Act. Second, there must be special circumstances (other than financial hardship alone) that make it desirable to waive. Third, it must be more appropriate to waive than to write off the debt or part of the debt.
No Special Circumstances
The Act does not define what constitutes “special circumstances”. However, section 1237AAD(b) does make it clear that financial hardship alone will not constitute a special circumstance.
However, decisions of the Federal Court make it clear that “special” denotes something different from the usual or ordinary.[43]
[43] Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541, at 545 per
Kiefel J; Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones (2012) 89 ATR 267; [2012] FCA 639, at [51]; Boscolo v Secretary, Dept of Social Security [1999] FCA 106; (1999) 90 FCR 531, at [18]; Barker J in Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084, at [37].
French J (as he then was) said in Secretary, Department of Social Security v Hales (1998) 82 FCR 154, at 162:
The concept of special circumstances is broad. A constellation of factors, including financial circumstances, may fall within it. The express exclusion of financial hardship alone as a special circumstance is an indicator that it would otherwise be included. This gives some measure of the range of circumstances which will qualify as special. But as a matter of grammar and ordinary logic, the exclusion of financial hardship alone as a special circumstance does not mandate its inclusion in the range of matters constituting such circumstances for the purpose of enlivening the Secretary's discretion. ... 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.
The AAT has also considered the phrase and held that the interpretation in Beadle and Director-General of Social Security (1984) 6 ALD 1, at [12] (i.e. that the circumstances must be unusual, uncommon or exceptional), applies to the Act.[44]
[44] See Hunnibell and Secretary, Department and Community Services [2004] AATA 992, at [19]; Papps
and Secretary, Department of Family and Community Services [2005] AATA 660, at [37]
Ms Thurling submits that her health is a special circumstance and provided the Tribunal with a copy of a medical certificate completed by Dr Sampsa Kallinen, General Practitioner, on 6 February 2018.[45] Dr Kallinen reports that Ms Thurling has bipolar affective disorder which results in recurrent depression and sporadic hypomania.
[45] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 18 May 2018, Attachment A, Medical
certificate of Dr Kallinen dated 6 February 2018.
There is no evidence before the Tribunal that Ms Thurling’s medical condition impacted on her ability to understand her obligations to report changes in her income to Centrelink. There is also no medical evidence before the Tribunal of Ms Thurling’s medical condition during the Period. The doctor reported that her conditions’ onset was in December 2017. There is insufficient information regarding Ms Thurling’s medical condition and what relevance, if any, it would have to a special circumstances claim. Even if it was relevant, Ms Thurling has admitted to purposely not informing Centrelink of her earnings at times. In those circumstances, the special circumstances provision cannot apply. While Ms Thurling explained that she was poor and needed the money, that does not justify taking money to which you are not entitled.
No other special circumstances exist within the meaning of section 1237AAD to warrant the exercise of the discretion in section 1237AAD to waive the debt.
CONCLUSION
The decision under review is set aside and substituted with a decision that the debt arising from overpayment of the Newstart Allowance is written off for a period of six (6) months pursuant to section 1236(1) of the Social Security Act 1991.

I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.......................[SGD]...........................
Associate
Dated: 4 January 2019

Date of hearing: 22 November 2018

Date reserved: 13 December 2018

Applicant: By telephone

Solicitors for the Respondent: Jasmine Forsyth, Senior Government Lawyer
Department of Human Services

Date of hearing:	22 November 2018
Date reserved:	13 December 2018
Applicant:	By telephone
Solicitors for the Respondent:	Jasmine Forsyth, Senior Government Lawyer Department of Human Services