Vella; Secretary, Department of Social Services and (Social services second review) - [2021] AATA 4051

Vella; Secretary, Department of Social Services and (Social services second review) [2021] AATA 4051 (4 November 2021)
Division:GENERAL DIVISION
File Number:2020/7750
Re:Secretary, Department of Social Services
APPLICANT

Namiko VellaAnd
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:4 November 2021
Place:Brisbane

The Tribunal sets aside the decision of the Social Services and Child Support Division of the Tribunal dated 20 October 2020 and substitutes a decision that the Respondent has a parenting payment debt of $32,273.56 for the period 13 June 2015 to 28 September 2018 that should be recovered in full.
.........................[SGD]..............................................
Member D Mitchell

CATCHWORDS
SOCIAL SECURITY – Parenting Payment – overpayment – where partners income was not reported – where no sole administrative error – where no special circumstances -– decision under review set aside and substituted
LEGISLATION
A New Tax System (Family Assistance) Act 1999 (Cth)
A New Tax System (Family Assistance)(Administration) Act 1999 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Barnes and Secretary, Department of Social Services [2014] AATA 786
Boscolo v Secretary, Dept of Social Security[1999] FCA 106; (1999) 90 FCR 531
Centkowska and Secretary, Department of Social Services (Social services second review) [2016] AATA 342
GGGD and Secretary, Agency of Social Services [2020] AATA 802
Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541
Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[2010] FCA 1084
L v Department of Social Security [1995] AATA 159; (1995) 38 ALD 176
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Ivovic and Director-General of Social Services [1981] AATA 57; (1981) 3 ALN N95
Re Lumsden and Secretary Department of Social Security [1986] AATA 228; (1986) 10 ALN N225
Re Stubbs and Secretary Department of Families Community Services [2003) AATA 729
Rosser and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 475
Secretary, Department of Education, Employment and Workplace Relations and Brookes [2008] AATA 501
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Walsh [2008] AATA 75
Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones (2012) 89 ATR 267; [2012] FCA 639
Secretary, Department of Social Security v Hales [1998] FCA 219
Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190
Tabije and Secretary, Department of Social Services [2014] AATA 778
Waddell and Secretary, Department of Employment and Workplace Relations [2006] AATA 557
Waqar and Secretary, Department of Social Services (Social services second review) [2020] AATA 1493
Ward and Secretary, Department of Families and Community Services [2000] AATA 212
YKBJ and Secretary, Department of Social Services [2015] AATA 65
REASONS FOR DECISION
Member D Mitchell
4 November 2021
INTRODUCTION

The decision under review is the decision of the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal dated 20 October 2020.[1] On that date, the SSCSD set aside the decision of Centrelink, made on behalf of the Secretary, Department of Social Services (the Applicant) to raise and seek to recover a parenting payment debt for the period 13 June 2015 to 28 September 2018 in relation to Mrs Namiko Vella (the Respondent).[2]
[1] Exhibit 1, T Documents, T2, pages 3-13, Decision of the SSCSD.
[2] Exhibit 1, T Documents, T2, pages 3-13, Decision of the SSCSD.
The SSCSD decided that while there was a parenting payment debt of $32,650.53 for the period 13 June 2015 to 28 September 2018 (the Debt Period) the Commonwealth’s right to recover those parts of the debt which arose in the following periods must be waived due to administrative error:[3]
·13 June 2015 to 10 July 2015;
·1 March 2016 to 6 May 2016;
·25 July 2016 to 14 October 2016;
·1 January 2017 to 3 July 2018; and
·28 August 2018 to 28 September 2018.
[3] Exhibit 1, T Documents, T2, page 13, Decision of the SSCSD.
The SSCSD also found that the Applicant must recalculate the remaining debt for the period 7 May 2016 to 24 July 2016 on the basis that the Respondent’s husband’s was taken to be $18,477.[4]
[4] Exhibit 1, T Documents, T2, page 13, Decision of the SSCSD.
The Applicant sought review of that decision by this Tribunal by way of application dated

19 November 2020.[5]
[5] Exhibit 1, T Documents, T1, pages 1-2, Application for Review.
BACKGROUND
The Respondent was granted parenting payment from 29 November 2013.[6]
[6] Exhibit 1, T Documents, T16, page 317, Centrelink Benefits Status screen capture.
On 7 February 2015, the Applicant issued the Respondent with a notice pursuant to section 68(2) of the Social Security (Administration) Act 1999 (Cth) (Information Notice) advising details of her parenting payment. The notice provided (among other things), that the information used for calculating the payment included:[7]
Your partner’s annual other income………………..$5,953.74
Your partner’s fortnightly earned income ……………….$0.00
[7] Exhibit 1, T Documents, T18, page 393, Information Notice sent to the Respondent dated 7 February 2015.
The Information Notice outlines the Respondent’s reporting requirements as follows:[8]
[8]     Exhibit 1, T Documents, T18, page 394, Information Notice sent to the Respondent dated 7 February 2015.
What you must tell us
You must tell us within 14 days (28 days if residing outside Australia) if any of the changes listed below happen or are likely to happen to you and/or your partner (if you have one). If you get a Reporting and income Statement, report your earnings or changes in circumstances on your reporting day.
This is an information notice given under social security law.
You must tell us, if:
….
·         Your partner’s total personal income goes over $914.00 a fortnight
….
·         Your or your partner’s income from self-employment or a business increases
……
During the Debt Period and up to 25 March 2020, the Applicant issued a number of Information Notices to the Respondent to the same effect.[9]
[9]
During part of the Debt Period, the Respondent’s husband, Mr Justin Vella (Mr Vella) was working for Lambert Painting Services.[10]
[10]
On 24 March 2016, the Applicant, commenced a review of the Respondent’s husband’s income as recorded in her account, as the income amount had not been updated since January 2014.[11] The Applicant sent the Respondent an Information Notice requiring her to provide her husband’s personal income tax return for the 2015 financial year.[12]
[11] Exhibit 1, T Documents, T17, pages 352-353, File notes form Centrelink’s mainframe.
[12]
On 4 April 2016, the Respondent provided a partial personal income tax return for her husband for the 2015 financial year. The tax return showed that he had $3,480 in earnings from Lambert Painting Services and $14,997 in self-employment income.[13]
[13] Exhibit 1, T Documents, T6, pages 111-113, Screenshot of the Individual Tax Return of Justin Vella for the 2015 income tax year.
During the Debt Period, the Respondent’s husband was in receipt of the Family Tax Benefit (FTB) in relation to their children. During the Debt Period, the Respondent’s husband made FTB income estimates on 14 March 2016[14] and 5 April 2016[15] providing that his annual estimated income was $31,302 and $35,000 respectively. The Respondent’s husband’s income estimates for FTB during the Debt Period were recorded to be as follows:[16]
[14]    Exhibit 2, Secretary’s Statement of Facts & Contentions, Attachment B, File note from Mr Vella’s record dated 14 March 2016.
[15]    Exhibit 2, Secretary’s Statement of Facts & Contentions, SFIC, Attachment C, File note from Mr Vella’s record dated 5 April 2016.
[16]    Exhibit 2, Secretary’s Statement of Facts & Contentions, SFIC Attachment A, Family Assistance Office Summary Details (FISD) screens.

Date estimate effective from

Mr Vella’s recorded income estimate for FTB

1 July 2015

$31,302

18 November 2015

$31,302

29 February 2016

$31,302

1 July 2016

$35,000

1 January 2017

$35,000

1 July 2017

$35,560

1 July 2018

$42,017

During the Debt Period the Respondent did not make any declarations to the Applicant in relation to her husband’s actual fortnightly earnings for the purposes of her parenting payment.
On 22 October 2018, the Respondent provided her husband’s payslips from Lambert Painting Services for the Debt Period to the Applicant.[17] The payslips showed that the Respondent had underdeclared her husband’s income from his employment during the Debt Period.
[17]
Consequently, on 4 June 2019, the Applicant decided, on the basis that correct income from the Respondent’s husband’s employment had not been taken into account when calculating her rate of parenting payment, to raise and recover a parenting payment debt against the Respondent in the amount of $33,676.64 for the period 30 May 2015 to

28 September 2018.[18]
[18] Exhibit 1, T Documents, T15, pages 224-226, Debt letter sent to the Respondent dated 4 June 2019.
On 5 May 2020, an authorised review officer (ARO) reviewed and varied the decision made on 4 June 2019 to the extent that the Respondent had a parenting payment debt of $32,650.53 for the period 13 June 2015 to 28 September 2018.[19]
[19] Exhibit 1, T Documents, T10, pages 203-209, ARO decision and Notes.
On 20 August 2020, the Respondent sought review of the ARO’s decision by the SSCSD.[20] On 20 October 2020, the SSCSD decided that while there was a parent payment debt of $32,650.53 for the period 13 June 2015 to 28 September 2018 the Commonwealth’s right to recover those parts of the debt which arose in the following periods must be waived due to administrative error:[21]
·13 June 2015 to 10 July 2015;
·1 March 2016 to 6 May 2016;
·25 July 2016 to 14 October 2016;
·1 January 2017 to 3 July 2018; and
·28 August 2018 to 28 September 2018.
[20] Exhibit 1, T Documents, T11, pages 210-211, Request for Statement.
[21] Exhibit 1, T Documents, T2, page 13, Decision of the SSCSD.
The SSCSD also found that the Applicant must recalculate the remaining debt for the period 7 May 2016 to 24 July 2016 on the basis that the Respondent’s husband’s income was taken to be $18,477.[22]
[22] Exhibit 1, T Documents, T2, page 13, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application dated 19 November 2020.[23]
[23] Exhibit 1, T Documents, T1, pages 1-3, Application for Review.
On 28 October 2021, a Hearing was held for this application. At the Hearing, the Respondent was represented by Mr Vella. Both the Respondent and Mr Vella gave evidence under affirmation by telephone.
The Respondent is presently in receipt of parenting payment and FTB.
ISSUES
The issues for the Tribunal to consider are:
1.Whether the Respondent was paid more than her correct amount of parenting payment for the period 13 June 2015 to 28 September 2018;
2.If so, whether any such overpayment constitutes a debt to the Commonwealth; and
3.If so, whether the debt is recoverable in part or in full?
CONSIDERATION
The law in relation to the payment of parenting payment and recovery of social security debts to the Commonwealth is found in the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (Cth) (Administration Act). The law in relation to the payment of FTB and recovery of FTB debts to the Commonwealth is found in the A New Tax System (Family Assistance) Act 1999 (Cth) and A New Tax System (Family Assistance)(Administration) Act 1999 (Cth).
Did a debt exist?
How is the rate of parenting payment (partnered) calculated?
Where a person is a member of a couple, section 503 of the Act states that their rate of parenting payment is worked out using the Benefit PP (Partnered) Rate Calculator at the end of section 1068B of the Act.
The ordinary income of both the person qualifying for parenting payment and where relevant their partner is taken into account when calculating the rate of their parenting payment entitlement.
Section 8(1) of the Act provides that income in relation to a person means:
(a)an income amount earned, derived or received by the person for the person’s own use or benefit; or
(b)a periodical payment by way of gift or allowance; or
(c)a periodical benefit by way of gift or allowance;
but does not include an amount that is excluded under subsection (4), (5) or (8).
Section 8(1) of the Act provides that ordinary income means income that is not maintenance income or an exempt lump sum.
Section 1072 of the Act sets out the general meaning of ordinary income as:
A reference in this Act to a person’s ordinary income for a period is a reference to the person’s gross ordinary income from all sources for the period calculated without any reduction, other than a reduction under Division 1A.
Consequently, the gross fortnightly employment income of the Respondent and her husband are to be taken into account in calculating her rate of parenting payment. The Tribunal notes that the Respondent has not disputed the evidence before the Tribunal in relation to the employment income of her husband.
Did a debt arise?
Section 1223(1) of the Act provides that if a person receives a payment that they were not entitled to for any reason 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.
The obligation is on the payment recipient to report any changes in their circumstances, which includes their earnings – this is set out in most cases by letters sent by Centrelink pursuant to section 68 of the Administration Act.
Section 100 of the Administration Act deals with circumstances where a person who is receiving a social security payment is given a notice under section 68(2) of the Administration Act requiring them to report a change in circumstances within a specified time. If the change occurs but the person does not inform the Department and the person’s rate of social security payment changes, the social security payment becomes payable to the person at the reduced rate on the day on which the change of circumstances occurred.
Relying on Information Notices issued to the Respondent,[24] the Applicant contended that the Respondent failed to comply with the Information Notices issued to her under section 68(2) of the Administration Act as she did not advise the Applicant of her husband’s fortnightly employment income during the Debt Period. Therefore, the Applicant contended that the Respondent’s parenting payment can be retrospectively reduced under section 100(1) of the Administration Act from the start of the Debt Period.[25]
[24]
[25] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 7, paragraphs 36-38.
In applying the ordinary income test in Module D of the section 1068B of the Act by taking into account the Respondent’s husband’s payslips to recalculate her parenting payment rate for the Debt Period, the Applicant contended that the Respondent was paid more parenting payment than she was entitled to during the Debt Period. The Applicant further contended that the Respondent’s overpayment of parenting payment constitutes a legally recoverable debt under section 1223(1) of the Act.[26]
[26] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 7, paragraphs 39-41.
At the Hearing Mr Vella told the Tribunal that the Respondent does not agree that there was an overpayment or that the alleged debt is owed as she received the parenting payment amounts during the Debt Period as a result of an error made by Centrelink. When asked whether he wanted to make any submissions in relation to the debt calculation, Mr Vella told the Tribunal that it did not matter how much the alleged debt is, as the issue is, that they maintain they do not owe the money and do not think there is a debt where Centrelink made the error.
The Tribunal notes that the Applicant submitted further evidence containing better particulars in relation to the Respondent’s husband’s employment that provided details of income earnt on particular days in relevant pay periods.[27] Consequently, the Applicant submitted that upon recalculating the Respondent’s entitlement to parenting payments for the Debt Period, the correct debt amount is $32,273.56.[28]
[27] Exhibit 4, Secretary’s Supplementary Submissions, Attachment A – Earning Apportionment Tool.
[28] Exhibit 4, Secretary’s Supplementary Submissions, page 2, paragraphs 9-10.
While the Tribunal understands the contentions of the Respondent, how an overpayment of a social security benefit occurs is irrelevant in determining whether a debt to the Commonwealth exists pursuant to section 1223(1) of the Act. The Act clearly sets out how the rate of parenting payment is to be calculated and provides that both the parenting payment recipient and their partners income must be taken into consideration. There is no dispute in this matter that the Respondent’s husband was working throughout the Debt Period, as such his earnings should have been taken into consideration when the Respondent’s rate of parenting payment was calculated by the Applicant.
Having reviewed the evidence before it, and given the Respondent has not disputed the debt calculations, the Tribunal finds that the Respondent received more than her entitlement of parenting payment during the Debt Period.
Consequently, the Tribunal accepts the Applicant’s debt calculations and finds that the Respondent has a parenting payment debt of $32,273.56 in relation to the Debt Period, and that such a debt is owed to the Commonwealth.
Is the parenting payment debt recoverable?
As the Tribunal has found that a parenting payment debt exists it must determine whether the debt must be repaid.
It is generally expected that debts to the Commonwealth resulting from overpayments 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 that 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 Respondent’s parenting payment debt, the Applicant may write off, or waive, her parenting payment debt if the requirements set out in sections 1236, 1237A or 1237AAD of the Act are met.
Should the Applicant’s parenting payment debt be written off pursuant to sections 1236 of the Act?
Section 1236 of the Act applies in relation to whether the Respondent’s parenting payment debts for the Debt Period should be written off.
Section 1236(1) of the Act provides that subject to section 1236(1A) the Applicant 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 Applicant to decide to write off a debt if and only if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
(c)the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d)it is not cost effective for the Commonwealth to take action to recover the debt.
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:
(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.

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, 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 Community Services [2003) AATA 729 the Tribunal remarked at [20] 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 [1981] AATA 57 the Tribunal stated at [66]:
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 ….
The Applicant contended that Respondent’s debt cannot be written off pursuant to section 1236 of the Act for the following reasons:[29]
·the debt is not irrecoverable at law;
·the Respondent has capacity to repay the debt as evidenced by FTB and parenting payment single payments totalling in excess of $1,000 per fortnight from which the Agency may take deductions; and
·there is no evidence the Respondent is in severe financial hardship.
[29] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 8, paragraph 49.
The Respondent did not contend that she was in severe financial hardship or that having to repay the debt would cause such hardship. The Respondent’s main contention was that a debt should not exist as it resulted from an administrative error made on behalf of the Applicant.
Based on the evidence before it, the Tribunal, is satisfied that the Respondent’s parenting payment debt for the Debt Period is recoverable at law, the Respondent’s whereabouts are known and that it is cost effective for the Commonwealth to take action to recover the debts.
On the basis that the Respondent is presently in receipt of FTB and parenting payment the Tribunal is satisfied that the Respondent has the capacity to repay the debt and if payment was deducted from the social security payments being made to her pursuant to section 1236(1C) of the Act this would not result in the Respondent being in severe financial hardship.
Consequently, the Tribunal finds that the Respondent’s parenting payment debt cannot be written off pursuant to section 1236 of the Act.
Should the Respondent’s parenting payment debt be waived due to sole administrative error pursuant to section 1237A of the Act?
Section 1237A of the Act applies in relation to whether the Respondent’s parenting payment debt for the Debt Period should be waived due to a sole administrative error having been made by the Applicant.
Section 1237A of the Act provides that the Respondent 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.
Selway J, in Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190 at paragraph [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.
Relevantly, in Ward and Secretary, Department of Families and Community Services (2000) AATA 212, Deputy President Forgie held at [47]:
This means that the Secretary’s duty to waive does not extend to those debts which are attributable to errors or other factors which are independent of the Commonwealth’s administrative error. It makes no difference that those other errors or factors are minor.
At Hearing and consistent with the evidence provided to the SSCSD[30] and in written statements,[31] Mr Vella told the Tribunal that:
[30] Exhibit 1, T Documents, T2, pages 3-13, Decision of the SSCSD.
[31] Exhibit 1, T Documents, T2, pages 14-39, Submission to the SSCSD from Justin Vella with various attachments.
·In his view, the alleged debt is not owed due to the mistake of Centrelink.
·They are exhausted by the process which started in 2018 when he was told he had a debt which was then found not to have existed.
·He had walked into a Centrelink office and told them when he started to work for Lambert Painting.
·He and the Respondent separated in August 2020 however, he continued to help her with this matter as he is fearful of the consequences on their children should the debt have to be repaid.
·He had expected that when he reported his income that it would carry across to the Respondent’s Centrelink account.
·He does not think he was a nominee for the Respondent but rather on a few occasions he had permission to talk to Centrelink on her behalf.
·During the Debt Period, he claimed FTB in relation to their children and the Respondent claimed the parenting payment.
·When he was asked to report for FTB he did.
·The Respondent reviewed her own letters from Centrelink and he would not see them unless she asked him to assist her with something.
·They had not set out to do anything wrong, they believed that Centrelink were aware he was working and of his income.
At Hearing, the Respondent told the Tribunal that:
·It was her understanding that her husband’s reporting of his income for FTB purposes would also apply to the calculation of her parenting payment.
·She knew that her husband was working during the Debt Period, however she did not always know exactly how much he earnt.
·She acknowledged that the Centrelink notices made reference to her husband’s (as her partner’s) income being $0 and that she had seen this when she received the letters, however she did not pay any attention and did not think she had to report anything as she knew that her husband had reported that he was working and what his income was.
·She read the letters sent to her by Centrelink and that if she did not understand something, she would seek help from her husband or call Centrelink to ask them to explain. She did not recall asking her husband for assistance in relation to any of the letters during the Debt Period.
·She was aware of her obligation to tell Centrelink when her circumstances change.
·She was aware that her social security payments are affected by her husband’s income.
·It did not occur to her to contact Centrelink to tell them the information in the letters during the Debt Period were wrong.
·At no stage during the Debt Period, did she report her husband’s income on a fortnightly basis, as soon as she was told that she was required to do so she did.
·She never thought she was being paid more parenting payment that what she was entitled to.
·She presently has a part time job and is receiving FTB and parenting payment (single) in relation to her children.
The Respondent’s primary contention is that the parenting payment debt was attributed solely to a Commonwealth administrative error as the Applicant failed to calculate her correct rate of parenting payment by referring to the estimates of combined family income provided by her husband. She contended that the information provided by her husband should have informed the Applicant that its recording that his earnings were $0.00 was incorrect.
The Applicant sought to rely on the contentions set out in their Statement of Facts & Contentions[32] and contended that the Respondent’s parenting payment debt did not arise due to sole administrative error by the Commonwealth. The Applicant contended that it is important to note that the Respondent’s husband’s FTB notifications do not negate her reporting obligations and that as her husband was not a nominee on her account, he was not authorised to make changes to her Centrelink account.
[32] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 8-17, paragraphs 50-70.
The Applicant further contended that even if the Respondent’s understanding of the application of FTB reporting was correct she continued to have an obligation to advise that the information shown on the Information Notices was incorrect and as such she had contributed to the error.
The Applicant drew the Tribunal’s attention to the decisions in Waddell and Secretary, Department of Employment and Workplace Relations [2006] AATA 557 and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Walsh [2008] AATA 75 where the Tribunal decided that the FTB income estimates satisfied the income notification obligation in respect of the relevant social security entitlement. The Applicant however, drew the distinction between the findings in those cases and the present case as in those cases the benefit recipient was receiving both the FTB and a social security payment and had diligently reported their FTB income estimates.
It is important to understand that Family Assistance payments (of which FTB is included) and Social Security payments (of which parenting payment is included) are governed by separate legislation,[33] have different definitions of income, have different requirements in relation to reporting income and are calculated on a different basis. For example FTB is calculated based on an income estimate and is reconciled on an annual basis and parenting payment is calculated considering the fortnightly actual earnings of the recipient and their partner.
[33] Family Assistance payments are governed by the A New Tax System (Family Assistance) Act 1999 (Cth) and A New Tax System (Family Assistance)(Administration) Act 1999 (Cth) whereas Social Security payments are governed by the Social Security Act 1991 (Cth) and Social Security (Administration) Act 1999 (Cth).
It is well established that the reporting of FTB income estimates does not satisfy the recipient’s reporting requirements in relation to their social security payments. Further, a failure to meet reporting requirements will more than likely mean that any resulting debts would not be found to have been caused solely by an administrative error made by the Commonwealth. Failure to correctly notify of changes in circumstances as required by an Information Notice issued in accordance with section 68(2) of the Administration Act, more often than not contribute to any resulting debt. Further, reporting in the FTB system is not seen as being automatic reporting or meeting reporting requirements under the social security payment system.
The Tribunal makes reference to: Secretary, Department of Education, Employment and Workplace Relations and Brookes [2008] AATA 501; Rosser and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 475; Tabije and Secretary, Department of Social Services [2014] AATA 778; Barnes and Secretary, Department of Social Services [2014] AATA 786; YKBJ and Secretary, Department of Social Services [2015] AATA 65; Centkowska and Secretary, Department of Social Services (Social services second review) [2016] AATA 342; GGGD and Secretary, Agency of Social Services [2020] AATA 802 and Waqar and Secretary, Department of Social Services (Social services second review) [2020] AATA 1493.
The Tribunal considers that the onus to read Information Notices, provide updates of changes of circumstances and advise of errors contained in those notices lies squarely with the person to whom those notices are being issued. In this case that onus lies with the Respondent. By failing to take steps to correct the information contained in the Information Notices and to query that her rate did not change even as her husband’s income increased, the Tribunal finds that the debt arose due to the actions and omissions of the Respondent.
During the Debt Period the Respondent did not in any form report her husband’s income (be that on a fortnightly or annual basis). Both the reporting of the Respondent and her husband was not, in the Tribunal’s view what could be considered to be a significant and conscientious effort to keep Centrelink updated. As such the Tribunal considers that the decisions in Waddell and Walsh do not assist the Respondent in this matter. Consequently, there is no basis for the Tribunal to depart from the usual principles discussed above and as set out in the cases referenced.
The Tribunal accepts that the Respondent did not intentionally claim more parenting payment than that which she was entitled to; that the raising of a debt and the subsequent review process has been stressful for both her and her husband; and it has impacted upon their family situation.
However, as outlined above the Tribunal finds that the evidence before it is clear. The Respondent did not report her husband’s income during the Debt Period. While the Respondent’s husband reported his income in relation to his FTB, he was not authorised to make changes to her Centrelink account. In any event reporting for FTB purposes is not taken to be reporting for parenting payment purposes. As such the Respondent’s parenting payment debt did not arise from sole administrative error.
Consequently, the Tribunal finds that the Respondent’s parenting payment debt cannot be waived pursuant to section 1237A of the Act.
Should the Respondent’s parenting payment debt be waived due to special circumstances pursuant to sections 1237AAD of the Act?
Section 1237AAD of the Act applies in relation to whether the Respondent’s parenting payment debt for the Debt Period should be waived due to the presence of special circumstances.
Section 1237AAD of the Act provides that the Respondent may waive the right to recover all or part of a debt if they are 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.
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.[34]
[34] Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541, at 545per 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].
In Re Beadle and Director-General of Social Security (1984) 6 ALD 1 the Tribunal held at paragraph 3:
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:
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.
The Applicant accepts that there is no evidence that the Respondent knowingly failed to comply with the Information Notices issued pursuant to section 68(2) of the Administration Act.[35]
[35] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 18, paragraph 75.
The Applicant contended that the Respondent’s parenting payment debt cannot be waived under section 1237AAD of the Act given there is no evidence to suggest that the Respondent’s circumstances as a whole are such that they are sufficiently unusual, uncommon or exceptional so as to make her case markedly different form the ordinary run of cases and are otherwise ‘special’.[36]
[36] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 19, paragraph 77.
At Hearing, both the Respondent and Mr Vella gave evidence that they do not consider that special circumstances apply in this matter as there are no health or financial circumstances that are relevant to establishing that special circumstances exist.
Based on the evidence before it, in particular that given that by the Respondent at the Hearing, the Tribunal does not consider that the Respondent’s circumstances are sufficiently special or unusual to warrant the exercise of the discretion in section 1237AAD of the Act. The Respondent’s circumstances are not markedly different to those of other social security recipients.
Consequently, the Tribunal finds that the Respondent’s parenting payment debt cannot be waived pursuant to section 1237AAD of the Act.
DECISION
For the reasons set out above, the Tribunal finds that:
(a)the Respondent was paid $32,273.56 more than her correct amount of parenting payment for the period 13 June 2015 to 28 September 2018; and
(b)the overpayment constitutes a parenting payment debt to the Commonwealth; and
(c)there is no basis upon which the Respondent’s parenting payment debt should be written off pursuant to section 1236 of the Act; and
(d)there is no basis upon which the Respondent’s parenting payment debt should be waived pursuant to sections 1237A or 1237AAD of the Act;
(e)the Respondent’s parenting payment debt is recoverable in full.
Consequently, the Tribunal sets aside the decision of the SSCSD dated 20 October 2020 and substitutes a decision that the Respondent has a parenting payment debt of $32,273.56 for the period 13 June 2015 to 28 September 2018 that should be recovered in full.

I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

.........................[SGD]..................................
Associate
Dated: 4 November 2021

Date of hearing: 28 October 2021

Advocate for the Applicant:
Mr Chris Murphy
Services Australia

Representative for the Respondent: Mr Justin Vella

Exhibit 1, T Documents, T18, pages 393-494, Notices sent to the Respondent for the period

7 February 2015 to 25 March 2020.

Exhibit 1, T Documents, T7, pages 114-163, Payslips of Justin Vella for the period 8 June 2015 to

30 September 2018.

Exhibit 1, T Documents, T18, pages 406-407, Request for Information sent to the Respondent dated

24 March 2016.

Exhibit 1, T Documents, T7, pages 114-163, Payslips of Justin Vella for the period 8 June 2015 to

30 September 2018.

Exhibit 1, T Documents, T18, pages 393-496, Notices sent to the Respondent for the period

7 February 2015 to 25 March 2020.

Date estimate effective from	Mr Vella’s recorded income estimate for FTB
1 July 2015	$31,302
18 November 2015	$31,302
29 February 2016	$31,302
1 July 2016	$35,000
1 January 2017	$35,000
1 July 2017	$35,560
1 July 2018	$42,017

Date of hearing:	28 October 2021
Advocate for the Applicant:	Mr Chris Murphy Services Australia
Representative for the Respondent:	Mr Justin Vella