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

[2021] AATA 2774

VLYK; Secretary, Department of Social Services and (Social services second review) [2021] AATA 2774 (14 July 2021)

Division:GENERAL DIVISION

File Number:2020/5081          

Re:Secretary, Department of Social Services

APPLICANT

VLYKAnd  

RESPONDENT

DECISION

Tribunal:Ms A E Burke AO Member

Date:14 July 2021

Date of written reasons:        9 August 2021

Place:Melbourne

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.

.....................[sgd].........................................

Ms A E Burke AO, Member

Catchwords

SOCIAL SECURITY –– oral decision – where conceded carer payment correctly cancelled – debt due to the Commonwealth – whether recovery of all or part of the debt should be written off or waived – debt in part attributable solely to error made by Centrelink – applicant did not knowingly make false statements or claims –  applicant accepted payment in good faith – notional entitlement – whether special circumstances exist to waive recovery of all or part of the debt – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

Ahamed v Secretary, Department of Social Services [2020] FCCA 1245
Alali and Secretary, Department of Social Services [2014] AATA 551
Angelakos and Secretary Department of Employment and Workplace Relations (2007) 100 ALD 9
Beadle and Director-General of Social Security (1984) 6 ALD 1
Briginshaw v Briginshaw (1938) 60 CLR 336
Davy and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 693
Dranichnikov v Centrelink (2003) 75 ALD 134
Gleeson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2009) 112 ALD 167
Groth and Secretary, Department of Social Security (1995) 40 ALD 541
Haggerty v Secretary, Department of Education, Training and Youth Affairs [2000] FCA 1287
Jazazievska and Secretary, Department of Family and Community Services (2000) 65 ALD 424
Jenkins and Secretary, Department of Social Services [2020] AATA 28
JZWB and Secretary, Department of Social Services [2015] AATA 721
Lee and Secretary, Department of Social Services [2014] AATA 630
Mirza and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1309
Phelan and Secretary, Department of Social Services (Social services second review) [2019] AATA 554
PZHC and Secretary, Department of Social Services [2015] AATA 762
Re Anderson and Secretary, Department of Families and Community Services (2002) 69 ALD 494
Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435
Re Secretary, Department of Family and Community Services and Jonauskas (2001) 65 ALD 553
Re Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Stapleton [2009] AATA 302
Re Stafford and Secretary, Department of Social Services [2018] AATA 2746
Re Wall and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 740
Re Wells and Secretary, Department of Social Services [2020] AATA 2365
Robinson and Secretary, Department of Social Services [2014] AATA 446
Re Wilson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2012] AATA 154
Ryde v Secretary, Department of Family and Community Services [2005] FCA 866
Secretary, Department of Social Security v Hales (1998) 51 ALD 695
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Sullivan v Civil Aviation Authority (2014) 141 ALD 540

Zilioli and Secretary, Department of Social Services [2021] AATA 11

Secondary Materials

Guide to Social Security Law, Department of Social Services

REASONS FOR DECISION

Ms A E Burke AO, Member

1. The Secretary of the Department of Social Services (the Applicant) is seeking a second-tier review of the decision made by the Social Services and Child Support Division of the Tribunal (AAT1) on 22 July 2020. AAT1 decided that VLYK (the Respondent) had a carer payment debt of $54,216.92, and a carer allowance debt of $7,666.18, for the period from 30 May 2018 to 28 April 2020. AAT1 partially waived recovery of the carer payment debt under section 1237AAD of the Social Security Act 1991, and in accordance with the following directions:

   (a)The carer payment debt is to be reduced to the difference between the amount of carer payment received for the period 30 May 2018 to 28 April 2020 and VLYK’s notional entitlement to Newstart allowance and then Jobseeker payment for the whole of the debt period. The residual amount is a debt to the Commonwealth which is recoverable.

   (b)The carer allowance debt is a recoverable debt to the Commonwealth.

2. This application was heard via telephone on 14 July 2021. Mr Tim Noonan, Solicitor in the Litigation and Information Release Branch of Services Australia appeared for the Applicant.   The Respondent was represented by Ms Emily Singh of Social Security Rights Victoria. The Respondent gave evidence under affirmation.

3. The Tribunal provided an oral decision at the hearing, affirming the decision of AAT1. VLYK’s representative subsequently requested written reasons for the decision, under section 43(2A) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). These are those reasons.

   BACKGROUND

4. VLYK is a 33-year-old widowed Chinese national who arrived in Australia in 2011; following her marriage to her Australian husband who she met in China in 2007. She holds a Bachelor of English degree from a Chinese institution and has not been in paid employment since arriving in Australia. VLYK was a full-time carer to her husband prior to his death in 2014. She subsequently received Newstart allowance from April 2015 to May 2018. VLYK met the care recipient (CR) in a coffee shop in 2017, they became friends and later she became his carer. VLYK and CR are not related and have never resided together.

5. On 13 December 2017 VLYK lodged a claim for carer payment (CP) and carer allowance (CA) as she had been providing personal care and attention to CR from 1 November 2017. VLYK advised Centrelink she did not live with CR. However. she was providing care for a significant amount of time each day, for 7 days a week, a total of 56 hours per week. She declared that "No other person provide personal care for CR on a regular basis".

6. On 5 January 2018, Centrelink notified VLYK of its decision to reject her CA claim as she and CR did not permanently reside at the same residence. Also, on 5 January 2018, Centrelink notified VLYK of a decision to reject her CP claim as she was not providing constant care to CR.

7. On 31 January 2018, VLYK signed a "Carer Allowance Questionnaire" in which she stated that she gave personal care to CR for 56 hours per week, 7 days per week. On question 8 of the form, which asked: "Does someone else also provide personal care for this person on a regular basis?", she answered “No”.

8. On 9 March 2018, VLYK requested a review of the decision to reject her claim. She detailed her care of CR in a letter:

   I am supervising, monitoring and providing personal care for CR on a daily basis regardless of my travel costs and personal medical condition. Due to CR's permanent impairment medical condition, he requires high care on almost everything.

   CR has moved to this new aged care facility where it is very close to my home since January 2018 in order to receiving constant care from me.

   The constant care includes:

   Helping and supervising CR get out of the bed;

   Preparing food and drinks;

   Giving meals and drinks;

   Toileting;

   Helping and taking CR out to his doctor's and dental appointments;

   Banking and bill paying;

   Picking up medications, shopping for special food and personal goods;

   Personal hygiene;

   Supervising CR's smoking;

   Going out for outings

   Arranging paper works and making contact at aged care facility and so on.

   All these listed care are considered to be essential and part of his routine to get CR involved and keep him physically and mentally healthy.

9. There is no record of Centrelink responding to VLYK’s request for review of the decision to reject her claim for CA and CP made on 13 December 2017.

10. On 30 May 2018, VLYK lodged a new claim for CP and CA, stating that she had provided personal care and attention to CR from 17 October 2017. Though she did not live with CR, she stated that “I provide personal care at home for a significant time each day”, 56 hours per week, 7 days per week; and declared that "No other person provide personal care for CR on a regular basis".

11. On 31 May 2018 Centrelink advised VLYK that she would receive CA and CP from 30 May 2018.

12. On 4 May 2020 Centrelink made a decision to cancel VLYK’s CA as she was not providing personal daily care to CR, which amounts to at least 20 hours per week.

13. On 27 May 2020 Centrelink made a decision to raise and recover from VLYK a carer allowance and carer supplement debt of $7,666.18, and a carer payment debt of $54,216.92, as she was not entitled to these payments.

14. On 27 May 2020, on internal review, a departmental Authorised Review Officer (ARO) affirmed the original decisions. The ARO noted:

    As per our conversation on 27 May 2020 CR has been residing in aged care facilities since 13 December 2017 when you lodged your claim for Carer Payment and Carer Allowance. you contend that you provide a range of caring requirements when you visit Ted on the aged care facility that encompasses guidance with mobility, toileting needs when you are visiting him, see to any bills he has, provide assistance with him eating his meals that are prepared by the facility.

    Because CR is living in an aged care facility that has commercial care arrangements you were not qualified to be paid Carer Payment and Carer Allowance. In your claims lodged for these payments you declared that you provided personal care in the care receiver’s home for a significant time each day.

    This means you were not qualified to be paid Carer Payment and Carer Allowance because CR lives in aged care that has commercial care arrangements you do not qualify to be paid Carer Payment and Carer Allowance. The decision to cancel your Carer Payment and Carer Allowance was correct.

    From 30 May 2018 to 25 June 2019 you were paid a total of $54,216.92. Based on your actual circumstances you were not qualified to be paid Carer Payment and Carer Allowance because CR is living in an aged care facility that provides commercial care, I have worked out that you were not eligible to be paid Carer Payment. This means you have a debt of $54,216.92.

    From 30 May 2018 to 25 June 2019 you were paid a total of $7,666.18. Based on your actual circumstances you were not qualified to be paid Carer Payment and Carer Allowance because CR is living in an aged care facility that provides commercial care, I have worked out that you were not eligible to be paid Carer Allowance. This means you have a debt of $7,666.18.

    I have considered the rules that allow a debt to be waived. Firstly, your debts were caused by you not being qualified to be paid Carer Payment and Carer Allowance because the care receiver was living in an aged care facility that has commercial care arrangements. As the debts were not caused solely by the department’s error, they cannot be waived on this ground.

    A debt may also be waived if there are special circumstances. Your circumstances need to be sufficiently unusual or uncommon as to be termed special. You have advised that you consider you are entitled to be paid Carer Payment and Carer Allowance as you believe you are continuing to provide a level of care for CR and have not been overpaid. I accept what you told me but I do not consider that these circumstances are unusual or uncommon.

    This means I have decided that you have a Carer Payment debt of $54,216.92 and a Carer Allowance debt of $7,666.18 that must be repaid.

15. On 22 July 2020,  AAT1 set aside the decision of the ARO, finding that VLYK’s carer payment (CP) should have been cancelled and that she had a CP debt of $54,216.92 for the period from 30 May 2018 to 28 April 2020; and a carer allowance (CA) debt of $7,666.18 for the same period. The Tribunal determined that VLYK’s CP debt should be reduced by her notional entitlement to Newstart allowance and then Jobseeker payment for the whole of the debt period. The Member found:

    33. The tribunal accepts that VLYK believed she was the only person providing ‘constant care’ to CR on a regular and ongoing basis and that she believed when she was filling out the claim form that she was providing care for CR in his own home, as the residential aged care facility is his home. Therefore, the tribunal finds that the debt did not arise wholly or partly from VLYK or some other person knowingly making a false statement or representation, or knowingly failing or omitting to comply with a provision of the Act or the Administration Act, this means that the discretion to consider whether special circumstances exist in this case is met.

    34. VLYK submitted that prior to applying for carer payment and carer allowance, she was in receipt of newstart allowance, and following the cancellation of carer payment and carer allowance she is now in receipt of jobseeker payment.

    35. The tribunal considered all of VLYK’s circumstances carefully including the manner in which the debt arose and finds that Centrelink error contributed to the debt because Centrelink officers failed to check the address that VLYK provided and they failed to adequately assess VLYK’s claim for carer payment and carer allowance. It is on this basis that the tribunal finds that special circumstances exist which make it unjust and unfair for the whole of the debt to be recovered from VLYK.

    36. The tribunal also finds that VLYK would have had a notional entitlement to newstart allowance throughout the period as she was receiving this payment before she was paid carer payment and she is now receiving jobseeker payment. In Oberhardt v Secretary Department of Education, Employment and Workplace Relations [2008] FCA 1923, the Federal Court considered the issue of whether the concept of “notional entitlement” is a relevant consideration in deciding whether or not special circumstances exist within section 1237AAD:

    The term “notional entitlement” is not defined in the Social Security Act, although it is used in section 1237AAC. In essence the term refers to an unclaimed benefit; a benefit which was not actually claimed by the person, but to which that person would have been entitled had they applied for it.

    In my opinion, the terms of section 1237AAC do not mandate that notional entitlement cannot be considered as a relevant consideration when considering “special circumstances” in section 1237AAD(b).

    [Section 1237AAD] … grants a broad discretion to the Secretary to waive debts, having regard to the way in which the debt resulted, any special circumstances that might exist and the appropriateness of waiving the debt.

    It follows that, in my view, notional entitlement should not be excluded from the range of available relevant considerations in deciding whether or not there are “special circumstances” to waive a debt under section 1237AAD.

    There are also indications in the documents before the tribunal that VLYK may have had medical exemptions at times from her mutual obligation requirements.

    37. The tribunal finds that the contribution of Centrelink error as well as VLYK’s notional entitlement to newstart allowance and jobseeker allowance throughout the period are special circumstances that set this case apart from other similar cases which make it desirable to at least waive the portion of the debt: that is, the difference between the amount paid for carer payment and the amounts paid for newstart allowance and then jobseeker payment throughout the relevant period.

    38. The debt in relation to carer allowance is a recoverable debt to the Commonwealth and should be repaid.

    39. The tribunal finds it is more appropriate to waive part of the debt than to write off the debt.

16. On 20 August 2020, the Secretary, Department of Social Services sought a review of the AAT1 decision by this division of the Tribunal, as she disagreed with the decisions. She stated:  

    The decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal on 22 July 2020 concerning VLYK. The Tribunal set aside the decision and found that the two debts were correct, however, waived a part of the debt as follows: the debt was to be reduced to the difference between the amount of carer payment received for the period 30 May 2018 to 28 April 2020 and VLYK’s notional entitlement to Newstart Allowance and the Jobseeker Payment for the whole of the period. The residual amount is a debt to the Commonwealth which is recoverable.

    The Social Services and Child Support Division of the Administrative Appeals Tribunal erred in setting aside the decision to waive part of the carer payment due to notional entitlement.

    ISSUES IN CONTENTION

17. The Tribunal needs to consider the following relevant issues:

    (a)Whether VLYK’s carer payment was correctly cancelled;

    (b)Whether VLYK was overpaid carer payment for the period;

    (c)If so, is the debt recoverable; and if yes,

    (d)Should the debt be waived due to administrative error pursuant to section 1237A of the Social Security Act 1991 (the Act); or

    (e)Whether special circumstances exist, such that the debt should be waived pursuant to section 1237AAD of the Act.

    RELEVANT LEGISLATION AND ISSUES

18. Carer payment is paid to a person who provides constant care, or care and attention on a daily basis, for a child or an adult with a disability or severe medical condition. As with all social security payments in the Australian income support system, it is designed to be a safety net for people unable to support themselves without calling on the resources of the community.

19. Section 198 of the Act outlines qualification for a carer payment:

    (1) A person is qualified for a carer payment if the requirements of this section are met.

    Constant care for disabled adult or disabled adult and a dependent child

    (2) The person must personally provide constant care for:

    (a) either:

    (i) if the person is the only person providing the constant care—a disabled adult (the care receiver) who has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 25, being a score calculated on the basis of a total professional questionnaire score of at least 10; or

    (ii) if not—a disabled adult (the care receiver) who has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 80, being a score calculated on the basis of a total professional questionnaire score of at least 32; or

    (d) a disabled adult and a dependent child of the adult (the care receivers), where:

    (i) the disabled adult has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 20, being a score calculated on the basis of a total professional questionnaire score of at least 8; =….

    Care in home

    (3) The care must be provided in a private residence that is the home of the care receiver or care receivers.

20. Section 198AAA of the Act clearly outlines that CP ceases when a person receiving care is admitted to an institution:

    (1) This section applies if:

    (a) carer payment is payable:

    (i) to a person who has ordinarily been providing constant care for a care receiver or care receivers; or

    (ii) because of section 197F, to a person who has ordinarily been providing care for a care receiver or care receivers; and

    (b) the person would, apart from this section, cease to be qualified for the payment because he or she ceases to provide constant care (or, if section 197F applies to the person, care) for the care receiver or any of the care receivers as a result of the care receiver being admitted permanently to an institution where care is provided for the care receiver.

    (2) The person remains qualified for the carer payment during the 14 weeks after the care receiver is admitted permanently to an institution.

1. According to the Social Security Guide (the Guide), to qualify for CA for an adult with a disability, a person must meet the following criteria:

   (a)The carer must meet the CA income test, AND

   (b)The person with a disability must be an adult with a disability, AND

   (c)Both the carer and the disabled child/adult must be an Australian resident, AND

   (d)The person with a disability must receive 'care and attention' on a daily basis because of the disability, AND

   (e)Care and attention must be provided in a private home that is the residence of the carer and the care recipient, OR

   (f)A carer who does not live in the same private home as an adult care receiver may qualify if the care relates to the care receiver's bodily functions or to sustaining the care receiver's life, and is provided on a daily basis, for a total of at least 20 hours a week, AND

   (g)The care is required permanently or for a minimum period of 12 months, unless the condition is terminal.

2. Additionally, to qualify for CA for the care of an adult with a disability, the adult care receiver must:

   (a)Be a family member or a person approved in writing by the Secretary as a care receiver AND

   (b)Receive care and attention from the carer, or the carer together with another person, AND

   (c)Have a determination made under section 38C of the Act that the adult has a score of 30 or higher under the ADAT including a THP score of 12 or higher. Adults who have a terminal illness and are not expected to live more than 3 months are taken to satisfy this requirement.

3. The Guide provides guidance on CA eligibility where the carer and adult care receiver do not live in the same private residence:

   When the carer and the adult care receiver do not live in the same private home, the carer may still qualify for CA if they provide care in the home of either the carer or the care receiver. However, the carer must provide a minimum of 20 hours care each week with some care being provided every day. The care must be required by the adult care receiver as indicated by the ADAT assessment and must be related to the care receiver's bodily functions or to sustaining the care receiver's life.

4. According to the Guide, to qualify for CP for an adult with a disability, a person must meet the following criteria:

   (a)The carer personally provides constant care for a higher ADAT score adult, AND

   (b)The care is provided in the home of the person being cared for, AND

   (c)The person receiving care:

   (i)Meets the definition of a care receiver, AND

   (ii)Passes the care receiver income and assets tests, OR

   (iii)Is a higher ADAT score adult receiving a social security or DVA pension/benefit, OR

   (iv)Is a higher ADAT score adult who would receive a social security or DVA pension/benefit if they had been an Australian resident for a long enough period, AND

   (d)The carer is in Australia, AND

   (e)Residence requirements are met, AND

   (f)The care is required permanently or for a minimum period of six months, unless the condition is terminal.

5. The Guide provides that for the purposes of CP and CA, a ‘carer’ is a person who provides constant care (CP), or care and attention on a daily basis (CA), for a child or an adult with a disability or severe medical condition.

6. The Guide provides the following definition of ‘constant care’ for the purposes of CP:

   A carer is said to provide constant care if they personally provide care on a daily basis for a 'significant period' during each day. The care may be active, supervisory or monitoring. To provide care on a daily basis for a significant period, a carer should reasonably be expected to provide at least the equivalent of a normal working day in personal care, as the policy intent of providing CP is to recognise that the carer is not able to undertake substantial employment because of their caring responsibilities. This includes circumstances where the carer or care receiver are absent from the care situation for part of the day, but the intensity of the care required and provided during the remainder of any 24 hour period is such that it roughly equates to a normal working day.

7. The Guide provides other factors which can be considered in the assessment of a CP claim when a carer and care receiver do not live at the same residence:

   With the exceptions noted below, the carer must personally provide constant care in the home of the care receiver. This means that CP CANNOT be paid to a claimant who is indirectly providing a care receiver with care.

   Carer lives in separate accommodation

   It is not necessary for the carer and the care receiver to be living in the same home. However, if the carer does not share the same accommodation as the care receiver, the constant care criteria must be closely considered. The following factors in particular should be taken into account:

   ·the nature of the care receiver's disability or medical condition

   ·the type of care or supervision needed

   ·the method of communication between the 2 homes, and

   ·the speed with which the carer can respond to an emergency.

8. The Guide defines the ‘private home’ of the carer and/or care receiver for CA eligibility as:

   A private home can be any residence that a person regards as his or her home provided that: the person actually lives in that residence, the person carries out his or her main domestic functions there, and there are NO commercial care arrangements in place for the provision of personal care, to a care receiver.

   Provided that these 3 criteria are met, a private home can be a house, unit, shed, caravan, campervan, yacht or any other type of structure.

   Carer & care receiver (CA (adult)) do not reside together 

   There is no co-residency requirement for qualification under section 954A of the SS Act, so the private home does NOT have to be the residence of both the carer and the care receiver. The required care and attention must still be provided to the care receiver in a private home but it may be the residence of either the carer OR the care receiver. Therefore, the carer may go to the care receiver's home to provide care, or the care receiver may go to the carer's home to receive care.

   It is intended that the person's home will be regarded as the dwelling in which the person actually lives or resides. This excludes situations where care is provided outside the carer or the care receiver's private home, such as in an institution or hospital.

9. Section 68(2)(a) of the Social Security (Administration) Act 1999 (the Administration Act) empowers the Secretary to give a notice to a person to whom a social security payment (such as carer payment) is being paid, requiring that person to inform Centrelink if a specified event or change of circumstances occurs or is likely to occur.

10. Section 72 of the Administration Act requires the notice be given in writing, personally, or by post, or in any other manner approved by the Secretary. Section 72(3)(b) of the Administration Act states that a person must provide the information required under the section 68 notice within 14 days after the day on which the event or change of circumstances occurs; or the day on which the person becomes aware that the event or change of circumstances is likely to occur.

11. Section 1223 of the Act outlines how debts arise from a lack of qualification, overpayment, or other such circumstances:

    (1)  Subject to this section, if:

    a) a social security payment is made; and

    b) a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;

    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.

12. Section 1237A(1) of the Act provides grounds for the decision-maker to waive recovery of any part of the debt. The section provides that the decision-maker must waive a debt if it was attributable solely to an administrative error by the Commonwealth and the debtor received the payments in good faith.

13. Section 1236(1A) of the Act allows the decision-maker to write off a debt 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.

14. Section 1237AAD of the Act allows the decision-maker to waive all or part of the 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 TRIBUNAL’S CONSIDERATION AND FINDINGS

    Evidence before the Tribunal

15. The evidence before the Tribunal included documents provided by the Applicant pursuant to section 37 of the AAT Act, referred to as the “T documents”. VLYK provided several statements, supporting material, and gave oral evidence at the hearing of this matter.

    Does VLYK owe a carer payment debt?

    Applicant

16. The Applicant contented that VLYK was not entitled to either CP or CA, as CR was not residing in his private home but in an aged care facility which was providing him with 24-hour care.

17. The Applicant therefore argued that VLYK  owed a debt to the Commonwealth of $54,216.92 for the period from 30 May 2018 to 28 April 2020 for CP, and a debt of $7,666.18 for CA for the same period, as she had received entitlements to which she was not eligible.

    Respondent

18. VLYK did not dispute that she did not meet the qualification criteria for CA or CP during the debt period.

19. VLYK did not dispute that the debts were validly raised by the Commonwealth.

20. The Tribunal finds that the CR was residing in an aged care facility, where he was receiving constant care and therefore VLYK had no entitlement to CP or CA in accordance with the Act as she was not providing constant care to CR in his private home. The Tribunal, based on all the evidence before it, including VLYK’s concession, finds VLYK was not entitled to CP or CA during the debt period. Centrelink correctly cancelled the payments.

21. Given the Tribunal has found that VLYK’s CP and CA were correctly cancelled, the Tribunal determines the Respondent owed a debt to the Commonwealth of $54,216.92 for the period from 30 May 2018 to 28 April 2020 for CP, and a debt of $7,666.18 for the same period for CA.

22. Accordingly, the Tribunal will now consider if any of the total debt was attributable to administrative error on the Applicant’s part; or if there were special circumstances sufficient to write off or waive all or part of the debt.

    Writing-off the debt

23. The Tribunal, standing in the shoes of the Secretary, has the discretion to write-off the debt under section 1236 of the Act.

24. The Applicant submits that the Respondent’s debt cannot be written-off under section 1236 of the Act for the following reasons:

    (a)The debt is not irrecoverable at law;

    (b)VLYK has capacity to repay the debt, via deductions from her current fortnightly benefits;

    (c)Recovery of the debt would not cause VLYK severe financial hardship; and

    (d)Her whereabouts are known, and it is cost-effective for the Commonwealth to recover the debt.

25. Based upon the evidence before it, the Tribunal finds that it is not reasonable to write-off the debt under section 1236 of the Act as VLYK does not meet the requirements.

    Waiver of the debt on the basis of administrative error

26. Under section 1237A of the Act, the Tribunal has a discretion to waive the right to collect the debt, if it was due solely to administrative error by Centrelink.

27. The Applicant conceded it may be open to the Tribunal to find that, given VLYK's advice on 9 March 2018 that CR had resided in an aged care facility since January 2018, Centrelink ought to have checked whether CR’s address was that of an aged care facility with commercial care arrangements. Further, the Applicant conceded the Tribunal could determine that Centrelink’s failure to do so may have constituted administrative error.

28. However, the Applicant argued that this failure did not constitute sole administrative error. Given the passage of time between the 9 March 2018 letter and the date of lodgement of the second claim on 30 May 2018, the Applicant argued that Centrelink was not obliged to enquire whether CR was still residing at an aged care facility, as people often stay at such facilities on a temporary or respite basis. The Applicant contends that the obligation to provide correct information about the caring arrangements for CR remained with the Respondent.

29. Further, the Applicant argued that VLYK contributed to the overpayment due to her declaration in the second claim, lodged on 30 May 2018, that no other person provided personal care to CR on a regular basis; which was false and incorrect because care was being provided to CR by the residential aged care facility. Additionally, VLYK failed to comply with the notices issued under sections 68(2) and 66A(2) of the Administration Act.

30. The Applicant referred the Tribunal to the matter of Stafford and Secretary, Department of Social Services [2018] AATA 2746, where the Member decided that failure to comply with notices issued under s 68(2) of the Administration Act meant that s1237A could not apply, stating at [78]:

    … 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.

31. The Applicant argued that, should the Tribunal find that all or part of the debts were attributable solely to the Secretary's administrative error, the issue then to be considered is whether the Respondent received the payments in "good faith".

32. VLYK’s representative contended that the debt was solely attributable to a Centrelink error and should be waived in its entirety. VLYK’s representative submitted that the errors by Centrelink were obvious, and this was supported by evidence of VLYK’s letter to Centrelink of 9 March 2018 in which she clearly stated the CR was living in an aged care facility. These errors, VLYK’s representative argued. caused her to be overpaid, resulting in the debt being raised.

33. Based on the evidence, the Tribunal found that the debt did not result solely from an administrative error by Centrelink but found administrative error had contributed to the creation and quantum of the debt. As the Applicant conceded, Centrelink’s failure to verify the nature of CR’s address, and to act on the information VLYK had provided in her letter of 9 March 2018 that CR was in an age care facility, had resulted in payments to VLYK, to which she was never entitled.

34. The Tribunal was concerned by Centrelink’s administrative errors in respect of VLYK’s CP and CA applications, as the agency had clearly not undertaken the appropriate assessment of the information provided. Nor do the records indicate that an assessment of CR was undertaken to determine if he was an eligible care receiver.

35. The Tribunal concurred with the findings of Member de Bono at AAT1, where she found:

    In Re Mc Knight and SDSS (1994) AATA 318, the tribunal found that the overpayment was not due to sole administrative error because the conduct of the person was also a contributing factor to the overpayment.

    Similarly, in this case the tribunal finds that administrative error was not the sole cause of the debt because VLYK indicated on both claim forms that she is the only person providing personal care to CR. While the tribunal accepts VLVK was providing a lot of care to CR, she was not the only person providing this care; the staff at the residential age care facility were also providing care to him. Therefore, sole administrative error was not the cause of the debts and the debts cannot be waived on this basis.

36. As the Tribunal finds the debt in question cannot be blamed solely on an administrative error by the Commonwealth, it therefore cannot be waived under section 1237A of the Act.

    Waiving all or part of the debt in special circumstances

37. Standing in the shoes of the Secretary, the Tribunal also has the discretion to waive all or part of VLYK’s debt in special circumstances. For the discretion to be exercised, all three conditions contained in subsections (a), (b), and (c) of section 1237AAD must be satisfied.

    Good Faith

38. The Applicant argued that VLYK did not receive the CA and CP in good faith, having regard to the authorities cited; and consequently, section 1237A of the Act could not apply.

39. The Applicant contended that the relevant case law included the decisions of Haggerty v Secretary, Department of Education, Training and Youth Affairs [2000] FCA 1287, Jazazievska and Secretary, Department of Family and Community Services (2000) 65 ALD 424, and Re Secretary, Department of Family and Community Services and Jonauskas (2001) 65 ALD 553). .

40. The Federal Court in Haggerty stated at [16]:

    16. Consistently with what his Honour said in the Prince case, want of good faith will arise where there is a positive belief that the payment has been made by mistake. It will also arise where there is a suspicion held by the recipient that he or she may not be entitled to the payment made or a doubt as to the entitlement coupled with some objective basis for such suspicion or doubt. The provision does not, however, authorise the imputation of want of good faith in any of the senses above described simply because there are in existence objective facts which would raise a belief or a doubt or a suspicion of non-entitlement in the mind of some imaginary recipient. That proposition is quite consistent with the view that the existence of such facts may support an inference that the recipient disbelieved or doubted or was suspicious about his or her entitlement. "Reason to know" as Finn J used that term in Prince does not necessarily import a criterion of imputed as distinct from actual want of good faith as I have described it.

41. The Federal Court in Jazazievska stated at [40]:

    40. Prima facie, s1237A(1) is concerned with actual personal receipt by the debtor of the payment or payments which give rise to the debt. The issue of good faith is, for the purpose of the section, to be determined when the debtor commences to exercise control over the payment by retaining it. It is at this time that the recipient must act with the requisite good faith. A lack of good faith does not mean that the recipient of the payment must be acting fraudulently when the payment is received and retained. It means that for whatever reason, the recipient acts without an honest belief that he or she was entitled to receive and retain the payment when he or she receives the payment and decides to exercise control over it by retaining it.

    41. A person does not act in good faith where the person turns a blind eye to circumstances which raise doubt as to the entitlement of the person to receive and retain the payment or refuses to make reasonable inquiries where doubt exists...

42. The Tribunal in Jonauskas stated at [61]:

    61. In this case, I have already found that the first payment was made by the Department to Mr Jonauskas on 7 August 1997. That is the day that he received it. Whether or not he knew that it had actually been paid into his bank account on that day, at that time, and certainly by the time he came to withdraw any of it, he had received the Department's letter of 22 July, 1997. As I find later, Mr Jonauskas did not know that there could be an error in the amount of Age Pension that he was paid and he did not know because he did not read the back of the letter requiring him to notify the Department if there were an error in his combined income. His not knowing is not, however, sufficient for me to find that he received the payment in good faith. He had reason to know that there might be an error and that reason was in the letter. He knew that he had been required to give details of his income and that of his wife and it was reasonable to expect that the amount of the income would have some effect upon the amount of the Age Pension. The words at the top of the Income and Investments form he signed on 7 July, 1997 told him that the "... information asked for on this form is needed to decide whether the Department can grant your claim, or will be used to calculate your rate of payment." (T documents, page 24) I accept that Mr Jonauskas had difficulty reading English and that he suffered giddiness and ill health after his fall almost two years before he lodged his claim. Even taking those matters into account, I find that he did not care about any information in the letter other than the amount of pension he would be paid. He was careless as to whether it contained any other information that needed to engage his attention. In circumstances in which the information as to his obligations was given to him but he did not make any attempt to find out what they were let alone fulfil them, I do not find that he received the payments in good faith. Consequently, no part of the debt can be waived pursuant to s. 1237A(1).

1. The Applicant argued that while VLYK had advised Centrelink on 9 March 2018 that CR had been in an aged care facility since January 2018, there was no evidence that  she had complied with the notices dated 31 May 2018, which required her to inform Centrelink in the event that she “start or stop sharing care with someone else, including an institution such as a nursing home/care facility”. The Applicant observed it was of particular note in light of VLYK’s declaration in the second claim (lodged 30 May 2018) that no other person provided care to CR on a regular basis.

2. The Applicant argued that VLYK could not have held an honest belief that she was entitled to the payments, or in the alternative, VLYK turned a blind eye to circumstances that raised doubt about her entitlement to the payments.

3. However, the Applicant noted VLYK’s evidence given at the AAT1 hearing that she “believed she was the only person providing constant care to CR on a regular and ongoing basis and that she believed when she was filling out the claim form that she was providing care for CR in his own home, as she understood that the residential aged care facility is his home”. The Applicant conceded that based on that evidence, and as there was no conflicting evidence, the Tribunal might be entitled to conclude that VLYK held an honest belief that she was entitled to receive and retain the payments.

4. VLYK’s representative argued that she had received the money paid to her in good faith, as she relied on Centrelink to correctly determine her eligibility in light of her forthright explanation of her own and CR’s situation. VLYK’s representative argued this was not an unreasonable expectation as it is a primary function of Centrelink staff to determine eligibility for payments.

5. The Tribunal finds VLYK had received the CP and CA payments in good faith, as she had not set out to deceive Centrelink about where CR was living or the level of care she was providing. The Tribunal considers that the evidence from Centrelink’s records confirmed that VLYK had accurately advised Centrelink that CR was residing in an aged care facility and that she provided the correct address of that facility.

6. The Tribunal notes that the Applicant conceded that based on this evidence, and as there was no conflicting evidence, the Tribunal might be entitled to conclude that VLYK held an honest belief that she was entitled to receive and retain the payments. The lack of Centrelink records associated with VLYK’s numerous applications for CP and CA left the Tribunal with no evidence to counter VLYK’s consistent assertions and her clear letter to Centrelink of 9 March 2018.

7. The Tribunal finds VLYK was unaware during the debt period that she was not entitled to CP and CA payments, and finds that VLYK had at all times believed she was entitled to CP and CA payments and had received the payments in good faith.

   Knowingly

8. In order to waive part or all of the debt under section 1237AAD of the Act, the Tribunal must be satisfied that VLYK did not knowingly make a false representation to Centrelink or fail to comply with the relevant legislative provisions. The term “knowingly” has not been defined in the Act, although it has been considered extensively by the Tribunal in similar circumstances.

9. In Re Callaghan and Secretary Department of Social Security (1996) 45 ALD 435, Deputy President Forgie said at [48]:

   48. There is nothing in section 1237AAD which suggests that the word “knowingly” should be given any meaning other than that a person has actual knowledge rather than constructive knowledge, that he or she is making a false statement or representation that he or she is failing or admitting to comply with a provision of the Act. The actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement or the act of omission.

   49. Mr Callaghan has acknowledged that he had received notices under section 727 of the Act and that he had read at least one of them. I am satisfied both on the material in the T documents and on his oral evidence that he received more than one of them and that he read the first one. On the basis of the notices themselves I am satisfied that they clearly set out his obligation to advise the department should his income, or that of Mrs Callaghan, change. I am also satisfied from the notice that it quite clearly stated that income included AUSTUDY benefits. Taking into account Mr Callaghan's knowledge of the notice and of his having read at least one of them, I find that he knew that he had an obligation to advise of a change in Mrs Callaghan's income. Therefore, when he failed to advise of the change he knowingly omitted to comply with a provision of the Act.

10. Deputy President Forgie in Jonauskas stated at [73]-[74]:

    73. … it seems to me that its use of "knowingly" in s1237AAD is a deliberate choice and means actual knowledge. That is not to say that recklessness is irrelevant in s1237AAD for it is relevant in determining, together with other matters, whether or not there are special circumstances

    74. In this case, I find that Mr Jonauskas did not knowingly fail or omit to comply with the requirements of s68. He did not do so as he did not know that he was required to do so.

11. Deputy President Forgie in Davy and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 693 at [74] referred to her decision in Jonauskas:

    …I concluded that 'knowingly' means actually knowing as opposed to the other two of the three degrees of knowledge. The first of the other two sorts is the sort of knowledge that comes from deliberately refraining to make enquiries because the enquiries will lead to answers that are not desired by the enquirer. The second is constructive knowledge in the sense that the person ought to have known the specific information or had the means of knowledge.

12. In Wall and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 740, the Tribunal stated:

    28. In Taylor’s Central Garages (Exeter) Ltd v Roper [1951] WN 383 at 385, Devlin J considered the meaning of “knowledge” and found that actual knowledge can be inferred from the evidence and the nature of the acts done. Further, in RCA Corporation v Custom Cleared Sales Pty Ltd (1978) 19 ALR 123 at 126, the Court of Appeal in the Supreme Court of New South Wales said:

    “In inferring knowledge, a court is entitled to approach the matter in two stages; where opportunities for knowledge on the part of the particular person are proved and there is nothing to indicate that there are obstacles to the particular person acquiring the relevant knowledge, there is some evidence from which the court can conclude that such a person has the knowledge. However, this conclusion may be easily overturned by a denial on his part of the knowledge which the court accepts, or by a demonstration that he is properly excused from giving evidence of his actual knowledge.”

    29. Following the decision in RCA Corporation, it is open to the Tribunal to infer that a person had actual knowledge of their obligations under the Act where there were opportunities for them to gain that knowledge and where there were no obstacles to them acquiring the knowledge. In the present case, the respondent sent letters to the applicant notifying him of his obligations under the Act.

13. The Applicant contended there was no reasonable basis for VLYK’s belief that she was the only person providing care to CR, as it was obvious that the residential aged care facility also cared for CR at a place which was not CR’s private residence. Consequently, the Applicant argued section 1237AAD does not apply because subparagraphs (a)(i) and (ii) are not satisfied.

14. The Applicant argued that VLYK “knowingly” made a false statement/representation or failed/omitted to comply with section 68(2) of the Administration Act because:

    (a)she had actual knowledge that her declaration dated 30 May 2018 that “no other person provided personal care for CR on a regular basis” was false; and

    (b)as the notices dated 31 May 2018 issued under s 68(2) of the Administration Act clearly informed VLYK of her notification obligations, she had actual knowledge of omitting to comply with that provision.

15. VLYK’s representative contented that the submission of the Applicant that section 1237AAD(a) was not satisfied because there was no reasonable basis for VLYK’s beliefs, was an erroneous understanding of the test under section 1237AAD. VLYK’s representative argued that establishing a person lacks a reasonable basis for their belief is not sufficient to establish that the person has actual knowledge of a fact.

16. VLYK’s representative argued the applicable test is whether it can be established on the balance of probabilities that the debt arose wholly or partly from VLYK, or some other person, knowingly making a false statement or representation, or knowingly failing or omitting to comply with a provision of the Act or the Administration Act.

17. VLYK’s representative referred the Tribunal to Deputy President Forgie’s determination in Re Callaghan at [48]:

    The actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement or the act or omission.

18. VLYK’s representative argued VLYK’s witness statement of 18 June 2021 directly addresses this issue:

    At paragraph 73 the Secretary has alleged that I made a false statement in my second Carer Payment application when I said that no one else is providing care to CR. This was not a false statement because my understanding of the question in the Carer Payment was whether anyone was providing CR adequate care; one on one care, meeting his needs, like I was providing. I thought it was asking ‘is there essentially another person providing him the care I provide him’, and the answer to that was ‘no’. As I had provided Centrelink with the information about CR’s residence in an aged care facility, I assumed they knew this already and had no reason not to assume this. Therefore, it cannot be said that I provided false information or made a false statement, knowingly.

    54. From my perspective, Centrelink had been told that CR was in an aged care facility and he had not moved. I had also had multiple interactions with Centrelink staff (as detailed above) during the course of applying for the Carer Payment and seeking a review and I felt that I was being asked to provide additional information about my caring duties because that was what I needed to be granted the Carer Payment. If Centrelink staff had told me clearly at that time that, regardless of the level of care I was providing, I wasn’t eligible due to CR living in a care facility, I wouldn’t have kept trying to seek review/applied again. I feel Centrelink mislead me by encouraging me to provide additional information and then by granting me a payment they should have known I wasn’t eligible for, based on the information I had given them.

    55. I considered my first application had been rejected on the basis of Centrelink’s assessment that I was not providing ‘constant care’. So, in response to this, I provided more information, in my letter dated 9 March 2018 about my constant care giving.

    56. I didn’t mislead Centrelink, I had clearly told them that CR was living in an aged care facility. I knew they had that information so I believed they would take that information into account, and believed they had done so when they granted me the Carers Payment following my second application. At no point in time did I think I was not eligible for the Carers Payment. I was receiving it in good faith the entire time as I had provided all the correct information to Centrelink.

19. VLYK’s representative contented that the Tribunal should consider VLYK’s interactions with Centrelink prior to her application for CP.  She argued that it was of critical importance that VLYK made it clear throughout her interactions with Centrelink that CR resided in an aged care facility, both during her first and second application for Carer Payment. Evidence of this was documented in the letter from the Respondent requesting a review of the original decision on 9 March 2018, where she stated:

    I am supervising, monitoring and providing personal care for CR on a daily basis regardless of my travel costs and personal medical condition. Due to CR’s permanent impairment medical condition, he requires high care on almost everything. CR has moved to this new aged care facility where it is very close to my home since January 2018 in order to receiving constant care from me.

20. VLYK’s representative noted that VLYK also included the address of the residential aged care facility as CR’s residence in her application for CP, which demonstrated a sincere and forthright approach by VLYK.

21. VLYK’s representative argued that any reasonable person would agree that a resident in an aged care facility in Australia would receive at least some level of care from staff. It was therefore not logical that VLYK would be so forthright in her oral and written interactions with Centrelink in informing them that CR was in an aged care facility, and then subsequently knowingly provide false information to Centrelink in her application by stating no one else was providing care to CR.

22. Therefore, VLYK’s representative contended, logic and the available evidence, support the proposition that VLYK sincerely believed that she was the only person providing constant care to CR and the age care facility was CR’s home. This was confirmed in her witness statement at

    45. In the application I said that I was the only one providing constant care because that was what I believed was happening. It was my understanding was that I was the only contact for CR and there was no other friend or family that could help. Basically, CR is living there, and he is getting some help from the facility, but sometimes not. I am the only person going there every day. I am the only person providing the constant care.

    46. I was spending about 7 or 8 hours a day with CR. This was 7 days a week. I understood this to be ‘constant care’.

    47. In the application form for Carer Payment there is a question that asks whether anyone else was providing care. I understood this question to mean anyone else like me, i.e. someone going into CR’s home to provide him one on one care. Someone taking him out for appointments. I thought it meant someone in addition to the staff at his care home because I had made it clear to Centrelink that he was living in a nursing home.

    48. If I had known that there weren’t any kind of special circumstances for Carer Payment, or that there wasn’t any flexibility to receive the payment for someone in a nursing home, I wouldn’t have applied for Carer Payment.

    49. As I had told Centrelink where CR was living and they had granted me the Carer Payment, on the basis of having all the relevant information, that I was eligible. I relied on them reviewing the information I had provided and making a determination about my eligibility.

23. VLYK’s representative argued that the notices issued on 31 May 2018 were unclear in setting out the notification obligations. They argued the obligations are in cramped paragraphs, in small font, on the second and third pages of the letter which was sent to VLYK.

24. Regardless, VLYK’s representative argued there was no factual change in her circumstances following the grant of           CP that would have led VLYK to know she was required to notify Centrelink. For example, there were no changes in the care she provided to CR after she was granted the payment. Beside the heading ‘Care’ the obligation is to advise Centrelink within 14 days:

    If you no longer provide care for this person, they no longer require care on a daily basis for a significant period, either temporary or permanent or no longer would be considered to have a disability as their health has improved or if they pass away. You must also tell us if the person for whom you provide care has their pension or benefit (if they receive one) cancelled for any reason.

25. Similarly, VLYK’s representative argued CR was not moved into an institution after VLYK was granted Carer Payment. The 31 May 2018 notices stated that she was required to advise Centrelink within 14 days “if the person for whom [she] provide[d] care [was] admitted to an institution”. CR was already residing at the aged care facility at the time of application, a fact of which she had already advised Centrelink; and accordingly, there was no breach of this obligation as there was no change.

26. VLYK’s representative argued the allegation that VLYK knowingly made a false statement or knowingly omitted to comply with her obligations was a serious one, noting Dixon J’s test for evaluating evidence according to their serious nature and the gravity of the consequences flowing from a particular factual finding in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2:

    Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

27. Additionally, VLYK’s representative noted that in Sullivan v Civil Aviation Authority (2014) 141 ALD 540, Flick and Perry JJ decided at [114] that there was no general “principle of law” which required the AAT to apply the above test in Briginshaw. However, they also found at [120]-[121]:

    When making findings of fact which have “serious” consequences to a party, or “grave” consequences, the Tribunal is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached. The absence of any cross-examination on the evidence and the absence of any indication being given to a party that such evidence is under challenge, may well be factors taken into account initially by the tribunal and thereafter this court on “appeal”.

    121. Cases may be found where the tribunal has applied the decision in Briginshaw. But these cases are nothing more than the Tribunal proceeding, perhaps, in a manner which applies the common law rules of evidence. The provisions of s 33(1)(c), it will be recalled, simply provided that the Tribunal is not “bound” to apply those rules; it is not a prohibition upon the tribunal applying those rules if it sees fit.

28. Further, Logan J in the same case, found at [19] that he was bound by authority to accept that there was a principle “that there are types of decision where it is incumbent upon the Tribunal in its reasons to make apparent an appreciation of the need not lightly to reach conclusions carrying grave consequences.”

29. VLYK’s representative submitted that, accordingly, the Tribunal may consider that it is incumbent upon it to make apparent an appreciation of the need not lightly to reach the conclusion that VLYK knowingly made a false statement to Centrelink, or omitted to comply with her obligations under the Act or the Administration Act.

30. VLYK’s representative noted Flick and Perry J also noted at [119] of Sullivan that the rejection of evidence which is not contradicted by means of cross-examination or otherwise “may amount to a denial of procedural fairness”, and that “a failure to provide adequate or any reasons for rejecting unchallenged evidence may constitute an error of law”.

1. Ultimately, VLYK’s representative submitted that AAT1 was correct when it found at [33]:

   The tribunal accepts that VLYK believed she was the only person providing ‘constant care’ to CR on a regular and ongoing basis and that she believed when she was filling out the claim form that she was providing care for CR in his own home, as the residential aged care facility is his home. Therefore, the tribunal finds that the debt did not arise wholly or partly from VLYK or some other person knowingly making a false statement or representation, or knowingly failing or omitting to comply with a provision of the Act or the Administration Act, this means that the discretion to consider whether special circumstances exist in this case is met.

2. VLYK’s representative noted that the Applicant has had the opportunity to obtain further evidence of the Respondent’s interactions with Centrelink since the decision by AAT1. In particular, the Applicant has had the opportunity to identify and call witnesses who directly interacted with VLYK when she applied for CP. It would have been particularly helpful to have identified the individuals who received, read, considered, and processed VLYK’s letter dated 9 March 2018; and have their records or notes in relation to the consideration of that letter.  It would also have been helpful if the Applicant had obtained evidence as to why no review was conducted of the decision to reject VLYK’s first application for CP, despite her request in her 9 March 2018 letter, beyond noting “it appears that the Agency did not respond to that request”.

3. VLYK’s representative argued that the rejection of VLYK’s evidence as to her actual knowledge, which was not contradicted by cross-examination or evidence called by the Applicant, may amount to a denial of procedural fairness.

4. The Tribunal finds that VLYK’s debts did not arise because she knowingly made false statements or omissions to Centrelink. VLYK did not deliberately act dishonestly or with any intention to mislead Centrelink.

5. The Tribunal finds that VLYK honestly advised Centrelink of where CR lived and what type of accommodation it was, as evidenced in her appeal letter of 9 March 2018, which clearly stated CR was residing in a “new aged care facility”. Additionally, VLYK had indicated in all her applications for CP and CA that she and CR were not residing together and gave his correct address as the aged care facility.

6. The Tribunal determines that, given the rejection of VLYK’s original claim of 13 December 2017 on the basis that she and CR did not reside together and she was not providing constant care, it was completely plausible for  VLYK to assume Centrelink had assessed the information she openly provided to them  about the type of accommodation CR lived in, and the level of care she was providing CR when they granted her CP and CA.

7. The Tribunal finds that VLYK had an honest belief she was providing constant care to CR whilst he was in an aged care facility. Whilst this view would seem at odds with the reality of why individuals reside in an aged care facility to receive 24/7 care, VLYK and CR both had an ardent belief that the facility could not meet his unique care requirements because of his cerebral palsy combined with his age. As VLYK had been granted CP and CA as a non-family member who was not residing with CR, she understood she had to provide care for a minimum of 20 hours of care each week with some care being provided every day. She firmly asserted she was providing such a level of care.

8. The Tribunal finds that VLYK had not failed to advise Centrelink of any changes to CR’s living arrangements as she had already provided this information to Centrelink when she was granted CP and CA. As nothing had materially changed, the Tribunal found, as Deputy President Forgie had in Jonauskas at [74], VLYK “did not do so as she did not know that she was required to do so”. VLYK did not knowingly fail or omit to comply with the requirements of section 68 of the Act.

9. The Tribunal determined, on all the evidence before it, that VLYK had not knowingly made a misrepresentation to Centrelink or failed to comply with the relevant legislative provisions. The Tribunal found VLYK had advised Centrelink that CR was living in an aged care facility; that she firmly believed she was providing a level of care required to receive CP as a non-family member who did not reside with him; and that she was not required to update any details to Centrelink, as nothing had changed between her lodging her application and receiving numerous notices from Centrelink.

   Special circumstances

10. The expression “special circumstances” has not been defined in the Act. However, the meaning of “special circumstances” has been considered extensively by the Federal Court and the Tribunal.

11. In Ryde v Sec Department of Family and Community Services [2005] FCA 886, Branson J said at [26]:

    […] the evident purpose of s 1237AAD is to enable a flexible response to the wide range of circumstances which could give rise to hardship or unfairness, the statutory requirement for special circumstances discloses an intention to proscribe waiver in ordinary cases. The hardship or unfairness to which French J referred must be understood to be hardship or unfairness sufficient to justify departure from the general rule in the particular case.

12. In Groth v Secretary Department of Social Security (1995) 40 ALD 541, Kiefel J (as she was then) said at 545:

    […] for present purposes it is sufficient to observe that it requires something to distinguish Mr Groth’s case from others, to take it out of the usual ordinary case. That was, I consider, the only enquiry to be undertaken in this case. It would of course follow if one was to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.

13. The Applicant correctly observed that should the Tribunal determine that sub-sections (a)(i) and (ii) of Section 1237AAD of the Act are met, the Tribunal then had to consider whether there are “special circumstances”.

14. The Applicant argued that while the term “special circumstances” is not defined in the Act it has however been extensively considered in case law and the most frequently cited cases are:

    (a)Beadle and Director-General of Social Security (1984) 6 ALD 1 where the Administrative Appeals Tribunal stated:

    "...An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional.  Whether circumstances answer any of these descriptions must depend upon the context in which they occur.  For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special..."

    (b)Groth and Secretary Department of Social Security where the Federal Court stated at 545:   

    "...The phrase "special circumstances", it has been said, although imprecise is sufficiently understood not to require judicial gloss...it is sufficient to observe that it would require something to distinguish Mr Groth's case from others, to take it out of the usual or ordinary case. That was, I consider, the only enquiry to be undertaken in this case. It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary. The enquiry I have referred to would involve considering what would be the effect, if the provision in question or the principle of liability it creates, is applied..."

    (c)Dranichnikov v Centrelink (2003) 75 ALD 134, the Full Federal Court stated at [66] :

    … Other cases which have considered analogous words such as "special reasons" has tended to conclude, albeit in different contexts, that what is required will be circumstances which distinguish the case in consideration from the usual case. There will be a requirement that the circumstances are such that takes the case out of the ordinary…

    (d)Angelakos and Secretary Department of Employment and Workplace Relations (2007) 100 ALD 9 where the Federal Court stated at [33]:

    … There is less risk of overstatement if the words "unusual" or "uncommon" are emphasised. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case.

    (e)Davy where Deputy President Forgie stated at [80]:  

    … "special circumstances" are not merely directed to the person's own circumstances. Rather, they are directed to those that are "special circumstances… that make it desirable to waive". That necessarily requires a consideration of the person's individual circumstances but also a consideration of the general administration of the social security system. Waiver of the debt would mean that Mr Davy would have had the benefit of part of his DSP in circumstances in which he was not entitled to it… He has had the benefit of the money and there is no injustice in requiring him to repay the money of which he has had the benefit but not the entitlement… The system of administration of the Social Security Act does not visit any injustice for many if not all social security recipients but it did not lead to any injustice or unfairness on Mr Davy that is not visited, or potentially visited, upon all other recipients of social security payments under the Act. Therefore, I am not satisfied that there are special circumstances that make it desirable to waive the debt under s1237AAD of the Act…

15. The Applicant contended that:

    (a)Given the circumstances of how the debt arose, VLYK’s circumstances were not special, and it was not desirable to waive her debt; and

    (b)VLYK’s debt had arisen as she had failed to inform Centrelink that she was sharing care with an aged care facility for CR and in the knowledge, she was not the only carer for CR had no right to AP or CA.

16. VLYK’s representative submitted that a range of factors existed, which combine to allow the Tribunal to find that special circumstances exist in VLYK's case, satisfying the requirement under section 1237AAD(b). These included:

    (a) The administrative error by Centrelink that at least partially contributed to the overpayment being made;

    (b)  VLYK’s sincere belief that she was entitled to CP and her reliance on Centrelink to correctly process the claim;

    (c) The actual care provided by VLYK to CR;

    (d) VLYK’s notional entitlement to Newstart allowance and Jobseeker payment during the debt period;

    () VLYK’s medical conditions; and

    (f) VLYK’s personal circumstances including financial hardship.

17. VLYK’s representative submitted that VLYK is in a vulnerable financial position and the impact of this debt was an added burden which VLYK could not manage, as outlined in her witness statement:

    62. I am currently renting privately. My only income is Jobseeker Payment. I do not have any valuable assets, and my car is very old and not driveable at the moment. My husband did not leave any assets when he died. My Jobseeker Payment (with the recent increase) really only covers my rent with a very small amount left for my basic utilities and essentials. I live on a very small amount of food. At the end of the fortnight I often have to wait a few days, without food, until I receive the next payment. I often can't buy personal items that I need (for example toiletry items) or medication I need. It Is a constant struggle. Any amount of money coming out of these payments to pay off this debt causes further hardship (for example, more days without food, more days without medication).

    64. I do not have any relatives in Australia. I do not get any financial support from family overseas.

    65. Having this debt hanging over me is incredibly stressful. It is a very large amount of money for me to have to pay back. If I hadn't received the Carer Payment in the first place, and only received Newstart allowance during the debt period, I would have lived within my means during that time. But now, because of this overpayment, I have to try and pay back this really significant amount of money, from an incredibly limited income, and it is a big worry for me. The stress of this impacts my health.

    Notional entitlement

18. At issue is whether VLYK had a notional entitlement to Newstart allowance and Jobseeker payment (Jobseeker payment replaced Newstart allowance from 20 March 2020) in the debt period; and, if so, whether it constitutes special circumstances.

19. The potential entitlement to Newstart allowance and Jobseeker payment in the period is approximately $34,476.

20. Section 593 of the Act prescribes the qualification requirements for Newstart allowance and relevantly provides:

    (1) Subject to sections 596, 596A, 597 and 598, a person is qualified for a Newstart allowance in respect of a period if:

    (a) the person satisfies the Secretary that:

    (i) throughout the period the person is unemployed;

    (ii)…

    (b) in the case of a person to whom subparagraph (a)(i) applies — throughout the period, or for each period within the period, the person:

    (i) satisfies the activity test; or

    (ii) is not required to satisfy the activity test; and

    (c) if subsection 605(1) applies to the person, at all times (if any) during the period when a Newstart Employment Pathway Plan is not in force in relation to the person, the person is prepared to enter into such a plan, and

    (d) if subsection 605(1) or (2) applies to the person, at all times during the period when a Newstart Employment Pathway plan is in force in relation to the person, the person is prepared to enter into another such plan instead of the existing plan, and

    (e) if the person is required by the Secretary to enter into a Newstart Employment Pathway Plan in relation to the period, the person enters into that plan; and

    (f) while the plan is in force, the person satisfies the Secretary that the person is complying with the requirements in the plan, ….

21. Section 601 of the Act defines "activity test" and relevantly provides:

    1) Subject to subsections (1A) and (5), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is:

    (a) actively seeking; and

    (b) willing to undertake;

    paid work in Australia, other than paid work that is unsuitable to be undertaken by the person.

    Note 1: For situations in which a person is taken to satisfy, or is not required to satisfy, the activity test see:

    (a) section 603 (persons attending training camps or in remote areas);

    (b) section 603A (special circumstances);

    (c) section 603AA (persons 55 and over who are engaged in work);

    (d) section 603AB (certain principal carers and people with partial capacity to work).

    Note 2: See subsection (2A) on what paid work is unsuitable.

    (1A) A person also satisfies the activity test in respect of a period if:

    (a) the Secretary is of the opinion that, throughout the period, the person should undertake particular paid work, other than paid work that is unsuitable to be done by the person; and

    Note: See subsection (2A) on what paid work is unsuitable.

    (b) the Secretary notifies the person that the person is required to act in accordance with that opinion; and

    (c) the person complies, throughout the period, with the Secretary's requirement.

    (5) If a person fails to comply, throughout a period, with a requirement in a Newstart Employment Pathway Plan that is in force in relation to the person, the person cannot be taken to satisfy the activity test in respect of the period in spite of any compliance of the person with subsection (1), (4B) or (4D). .

22. The basic eligibility requirements for Jobseeker payment are that the person must be:

    (a)Aged 22 or over but below Age Pension age; and

    (b)Unemployed, or regarded as unemployed, or temporarily unable to work or study due to illness or injury where a person has a job or study to return to; and

    (c)Must participate in or be willing to participate in approved activities and/or job search, unless exempted from mutual obligation requirements; and

    (d)Be prepared to enter into, comply with or vary an existing Job Plan to fulfil the mutual obligation requirements.

    Applicant

23. The Applicant acknowledged that VLYK had received Newstart allowance for most of the period from April 2015 until the grant of CP and CA on 30 May 2018. Following the cancellation of her CP and CA, she was granted Jobseeker payment.

24. The Applicant contended that notional entitlement is one of many factors to take into account in considering special circumstances; and that it does not constitute special circumstances on its own. The Applicant outlined the following case law where notional entitlement had been considered:

    (a)The Federal Court in Oberhardt v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1923 observed at [32] and [64] that:

    The term "notional entitlement" is not defined in the Social Security Act, although it is used in s 1237AAC. In essence, the term refers to an unclaimed benefit; a benefit which was not actually claimed by the person, but to which that person would have been entitled had they applied for it.

    64. … notional entitlement should not be excluded from the range of available relevant considerations in deciding whether there are "special circumstances" to waive a debt under s 1237AAD.

    (b)Notional entitlement to Newstart allowance as a special circumstance was considered by the Tribunal in Robinson and Secretary, Department of Social Services [2014] AATA 446, where Deputy President Hotop set out the following principles, which can be summarised as:

    (i)It is insufficient to merely assume that an Applicant would have claimed newstart allowance because that assumption raises questions that must be answered in order to determine, for notional setting off purposes, the total amount of newstart allowance which the Applicant would have received in the relevant period.

    (ii)Those questions relate to whether an Applicant was unemployed or employed, the income received by the Applicant if employed, the periods in which the Applicant would have satisfied the "activity test" or taken to have been satisfied the "activity test" and whether the Applicant would have entered into and complied with a "Newstart Employment Pathway Plan".

    (iii)Even if a "high probability" or "likelihood" that an Applicant would have been qualified for, and received, newstart allowance during the relevant period would suffice for the purposes of the application of the " notional entitlement" concept (Re Wilson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 154), unless the Tribunal can answer the questions above and determine for which period the Applicant would have been entitled to newstart allowance, the notional entitlement concept does not provide any useful assistance in determining whether it is satisfied that there are special circumstances.

25. In Jenkins and Secretary, Department of Social Services [2020] AATA 28 the Tribunal reviewed a decision about an Austudy debt for overpayment. The Tribunal relevantly stated at [70]-[73]:

    70. The Tribunal cannot assume on the state of the evidence before it that the Applicant would have been entitled to Newstart Allowance for the period of 20 February 2010 to 5 December 2010 [the debt overpayment period]. For example, the Applicant would need to have satisfied the activity test in s601 of the Act in regards to eligibility for Newstart Allowance…

    71. There is no evidence before the Tribunal which verifies that the Applicant would have satisfied the Act.

    72. It is difficult to see how the Applicant would be able to satisfy the Act given the evidence before the Tribunal is that the Applicant was studying full time for the period at least until 4 August 2010, when the Applicant received their Statement of Attainment [31] (notwithstanding the study undertaken was not qualifying study in accordance with the 2009 Determination).

    73. The Tribunal is not satisfied that the Applicant had a notional entitlement to Newstart Allowance during the period in which the debt arose.

1. In Alali and Secretary, Department of Social Services [2014] AATA 551 the Tribunal reviewed a parenting payment debt decision. Mr Alali agitated for a notional entitlement to Newstart allowance in the debt period. The Tribunal at [50]-[53] applied the Robinson decision, relevantly stating:

   50…In a recent Tribunal decision of Robinson and Secretary, Department of Social Services [2014] AATA 446 the Tribunal considered this issue and noted that it would be difficult to determine to a degree of reasonable certainty whether or not a Newstart payment would have been made.

   53. In this matter, that uncertainty is also present and it is noted that this matter must be considered by reference to the particular circumstances of the Applicant as well as the information available to Centrelink. Accordingly, it is not appropriate to consider offset arrangements.

2. In Lee and Secretary, Department of Social Services [2014] AATA 630 the Tribunal reviewed an Austudy debt decision. Ms Lee argued she had a notional entitlement to Newstart allowance in the debt period. The Tribunal concluded that there was insufficient evidence that Ms Lee would have satisfied the “activity test” given her evidence to the Tribunal that she could not have looked for a job in the relevant period and the absence of documentary evidence of her alleged job applications. At [52] the Tribunal stated:

   52. However, based on the lack of documentary evidence supporting Ms Lee’s statement that she applied for jobs in the Relevant Period and the SSAT’s findings (based on Ms Lee’s evidence before it), it is difficult to conclude, on the balance of probabilities, that Ms Lee did actively seek and was able to undertake paid work in the Relevant Period in satisfaction of the “activity test” in s 601(1) of the SSA. Consequently, the Tribunal finds that Ms Lee was not qualified for Newstart Allowance in the Relevant Period under s 593 of the SSA. In any event, since no claim for Newstart Allowance was in fact made by Ms Lee in respect of the Relevant Period, Centrelink was not in a position to assess Ms Lee for such a claim. Such an assessment cannot be made retrospectively.

3. In Gleeson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs(2009) 112 ALD 167, the Applicant (who was in receipt of CP for his mother) failed to comply with his obligation to notify Centrelink of changes to his care provision when his mother was admitted permanently to a nursing home. The Tribunal, in finding that notional entitlement to Newstart allowance did not constitute special circumstances, even though the Applicant had been granted Newstart allowance once his CP ceased, stated at [12]:

   12. In relation to the second argument of special circumstances, it is difficult to accept that a failure to claim newstart allowance prior to 19 September 2007 satisfies the requirement. Before the SSAT, Mr Gleeson accepted that he was not looking for work prior to September 2007. It is pure conjecture to consider whether he may have been qualified for newstart allowance at 10 May 2007. He had made no claim prior to 19 September 2007. He had received the standard notifications from Centrelink in September 2006, November 2006 and April 2007 reminding him of his obligation to inform Centrelink of any change in the details giving rise to his entitlement to carer payment. In these circumstances, it cannot be accepted that a failure to make a claim for newstart allowance prior to 19 September 2007 amounts to special circumstances for the purposes of s 1237AAD. In cases such as Oberhardt v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1923 it was found appropriate to consider notional entitlement to alternative benefits in considering special circumstances. In this case, apart from the difficulty in being able to find that there was a notional entitlement to newstart allowance between May and September 2007, the failure to meet the obligation to inform of the change in circumstances mitigates against a finding of special circumstances making it desirable to waive the debt.

4. In Zilioli and Secretary, Department of Social Services [2021] AATA 11, Member Barton said at [79]:

   79.When considering whether there are 'special circumstances', the Tribunal must ask whether the Applicant would have had an unclaimed benefit, which was not actually claimed, and to which she would have been entitled. The Applicant's representative has speculated that she may be entitled to Newstart Allowance or a Special Benefit payment, however there is, as the Respondent makes clear, some uncertainty as to which payment and eligibility. The Tribunal cannot automatically assume that in the absence of an Austudy payment, the Applicant would have been eligible for another payment. This consideration must also be in the context of 'unusual' and 'uncommon' and the circumstances 'being so special'. The Tribunal is not satisfied this is the case.

5. The Applicant submitted that as Newstart allowance and Jobseeker payment are participation payments, contingent on a number of requirements being met for continued qualification, there are too many imponderables for the Tribunal to be satisfied with reasonable certainty that  VLYK would have qualified for Newstart allowance or that there was a high likelihood of her qualification. The Applicant relied on the following submissions in support of this contention:

   (a)It is unclear whether VLYK would have satisfied or be taken to have satisfied the activity test or would have complied with an employment pathway plan during the period.

   (b)If VLYK would not have satisfied the activity test, there is insufficient evidence to determine whether she would have been granted temporary medical exemptions from the mutual obligation requirements or to determine the periods those exemptions would have covered.

   (c)In order to be granted a temporary medical exemption, Centrelink must be satisfied that a person has an incapacity, that the incapacity is caused by a temporary (not permanent) medical condition arising from a sickness or accident, that the person has a temporary incapacity for all work of at least 8 hours per week, and that they have a valid medical certificate which specifies the maximum period of the exemption.

6. Sections 603C and 603F of the Act relevantly state:

   603C(1) Subject to this Subdivision, a person is not required to satisfy the activity test in respect of a period if:

   (a) throughout the period the person is incapacitated for work because of sickness or an accident; and

   (b) the incapacity is caused wholly, or virtually wholly, by a medical condition arising from the sickness or accident; and(c) the incapacity is, or is likely to be, of a temporary nature; and

   (d) if this Subdivision had not been enacted and paragraphs 593(1)(b), (c), (d) and (e) were disregarded, the person would qualify for newstart allowance; and

   (e) the person has, whether before or after the commencement of this section, given the Secretary a certificate of a medical practitioner, in a form approved by the Secretary, stating:

   (i) the medical practitioner’s diagnosis; and

   (ii) the medical practitioner’s prognosis; and

   (iii) that the person is incapacitated for work; and

   (iv) the period for which the person is incapacitated for work; and

   (f) the Secretary is satisfied that the incapacity has not been brought about with a view to obtaining an exemption from the activity test.

   …

   603F(1) A person ceases to be exempt, under this Subdivision, from the activity test if the person’s maximum exemption period ends.

   (2) Subject to this section, a person’s maximum exemption period is:

   (a) if the person has, whether before or after the commencement of this section, given the Secretary a medical certificate for the purpose of enabling the Secretary to decide whether the person was required to satisfy the activity test—the lesser of the following periods:

   (i) the period stated in the certificate as the period for which the person would be incapacitated for work;

   (ii) the period of 13 weeks that started or starts on the first day of the period so stated in the certificate; or

   (b) otherwise—the period of 4 weeks that started or starts on the day determined by the Secretary to have been the day on which the person’s incapacity for work began.

   (4) If:

   (a) a person is exempt, under this Subdivision, from the activity test; and

   (b) the person has, whether before or after the commencement of this section, given the Secretary a certificate of a medical practitioner that states the matters listed in paragraph 603C(1)(e) and s in accordance with the form approved under that paragraph; and

   (c) the Secretary is satisfied that the person’s incapacity for work will continue after the end of the person’s maximum exemption period; the Secretary may extend the person’s maximum exemption period by a period that is not more than the lesser of the following periods:

   (d) a period equal to the period stated in the certificate as the period for which the person would be incapacitated for work;

   (e) 13 weeks.

7. The Applicant noted Justice Weinburgh’s comments in Secretary, Department of Employment and Workplace Relations v Kelly [2006] FCA 659. The Applicant submitted that while this case did not concern notional entitlement for waiver under special circumstances, it nonetheless highlights the difficulty in establishing entitlement to payments such as Newstart allowance or Jobseeker payment where continued qualification is conditional on recipients meeting a number of strict statutory criteria, none of which can be deemed to be satisfied retrospectively. Justice Weinburgh stated at [29]:

   29. I would add that it is also difficult to see how something that manifestly did not occur can be deemed by a tribunal, with retrospective effect, to have occurred, at least in the context of statutory criteria that are strict, and clearly stated. The fact that there were several options available to the Secretary when dealing with the respondent's continuing right to claim a newstart allowance, does not mean that either the SSAT, or the AAT, was itself entitled to choose one or more of those options, and proceed upon the basis that it had been exercised. A statute that sets out strict conditions for eligibility for a particular benefit is not amenable to a construction that treats that which ought to have been done as though it had been done.

8. The Applicant contented that even if the Tribunal were to follow the approach taken in some decisions where the "high probability" of qualification for Newstart allowance was found to constitute special circumstances, those cases provided limited assistance as they are  not clear what "high probability" means in this context; or what evidence, if any, would be sufficient to satisfy such probability. A number of those cases, which the Applicant submits can be distinguished from the facts in the VLYK's case on the available evidence, are set out in the paragraphs below.

9. In Wilson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2012] AATA 154, DP Hack stated at [16]-[17]:

   16. The term "notional entitlement" is somewhat of a misnomer because it would be impossible for Ms Wilson to now establish that she was qualified for Newstart allowance between May 2007 and May 2008 and, in particular, to establish that she was seeking to engage in employment and undertake activities required by Centrelink and suchlike. Notional entitlement, in this context, is no more than a recognition of the high probability that Ms Wilson would have applied for, and been granted, another equivalent benefit from the date of removal of S from her care, had she notified Centrelink of the fact of the removal. Here Centrelink was notified on 8 May 2008 that S was in the care of the Department of Family and Community Services. Ms Wilson's parenting payment and family tax benefit was cancelled with effect from that date. On 16 May 2008 Ms Wilson claimed Newstart allowance. It was granted with effect from that date. In early December 2008 she went on to disability support pension. There is, therefore, every reason to suppose that Ms Wilson would have applied for, and been granted, Newstart allowance on and from 29 May 2007 had she notified Centrelink on that day of the removal of S from her care.

   17. … the likelihood that Ms Wilson would have received a similar benefit, had the true position been disclosed, is relevant in establishing that the present circumstances are out of the ordinary.

10. The Tribunal in PZHC and Secretary, Department of Social Services [2015] AATA 762 applied the Wilson decision at [67]-[68]:

    67. On consideration of the evidence before the Tribunal I am satisfied that there is every reason to suppose that the Applicant would have applied for and been granted Newstart allowance on 4 March 2010 if he had notified Centrelink that he had withdrawn from his TAFE course.

    68. In adopting the approach used by Deputy President Hack in Wilson I am of the view that the likelihood that the Applicant would have received a similar benefit supports a conclusion that his circumstances were out of the of the ordinary.

11. The Tribunal in Wells and Secretary, Department of Social Services [2020] AATA 2365 found special circumstances upon the basis of a notional entitlement to widow's allowance and waived the Applicant’s CP and CA debts to the extent of the notional entitlement. Deputy President Mellick stated at [48]:

    48. It is quite clear to me that there is a notional entitlement in relation to the amount that the Applicant would have received under the Widow's Allowance. I regard that as being a special circumstance, and that is if the Applicant had not made the incorrect claims or had not filled out the forms inappropriately, she would have continued to receive a Widow's Allowance. Therefore I consider the notional entitlement should be taken into consideration…

12. The Applicant submitted that while there are decisions where the Tribunal was satisfied that notional entitlement to payments such as parenting payment, widow allowance or Newstart allowance was established, and found to constitute special circumstances, those cases can be distinguished from this application for the following reasons:

    (a)Establishing qualification for widow allowance is relatively straightforward compared to Newstart allowance (and Jobseeker payment) with its participation requirements; and

    (b)The decisions concern matters where the Tribunal found a notional entitlement because other unusual or uncommon circumstances were also taken into account.

13. The Applicant referred to the matter of Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Stapleton [2009] AATA 302, in which the Respondent was admitted to a nursing home in April 2004 where she remained until her death in April 2006. She became ineligible to receive carer payment and carer allowance from 27 July 2004. The Tribunal found special circumstances upon the basis of:

    (a)Notional entitlement to Newstart allowance;

    (b)Ill-health; and

    (c)The Secretary's knowledge of her admission to the nursing home but was prohibited by legislation from acting on that knowledge.

14. The Tribunal in Stapleton found:

    36. Prima facie the Respondent had an entitlement to Newstart allowance once his mother had been admitted into the nursing home. I note that he was granted Newstart allowance in January 2006 when Centrelink determined that he was no longer entitled to Carer payment. There is no evidence that the Respondent's circumstances were in any way different in January 2006 to what they had been on the 20th April 2004.

    …

    41. … during the period the Respondent was improperly in receipt of Carer payment (not, however, Carer allowance) he was prima facie entitled to Newstart allowance.

15. The Applicant further contended that even if the Tribunal is satisfied of VLYK's notional entitlement to Newstart allowance and Jobseeker payment, such an entitlement should not be used to waive her debts, having regard to the context in which the debts arose, the lack of any other "special circumstances" and the proper administration of social security law more broadly.

16. The Applicant noted that the Tribunal in DSGR and Secretary, Department of Education, Science and Technology [2007] AATA 1981, found that:

    45. In circumstances where a discretion may be exercised, subject to it being fettered by the legislation as is the case under s 1237AAD, consideration would need to be given as to why the notional entitlement was in fact not claimed. In the present application, newstart allowance was not claimed because the applicant was receiving youth allowance. Had she been more alert to whether she had an entitlement to that benefit before 1 March 2004, she may well have then considered applying for the newstart allowance. In all probability, that benefit would have been paid. Unlike Sara, criticism cannot be levelled at Centrelink for failing to advise of an entitlement to newstart allowance because Centrelink, in the absence of responding to recipient notices, was of the belief that the applicant had an entitlement to youth allowance.

    …

    47. On balance I am not satisfied that it would be appropriate to consider any notional entitlement in deciding whether it would be appropriate to waive the debt. I am also of the view that having regard to the manner in which s 1237AAD is presently constructed, consideration of notional entitlement would only occur in very limited and unusual circumstances.

    Respondent

17. VLYK’s representative argued Member De Bono correctly considered notional entitlement as a central consideration in the Respondent case, citing Oberhardt, to ultimately find that special circumstances did exist.

18. VLYK’s representative contended that notional entitlement is a well-established consideration in deciding whether special circumstances existed, per s 1237AAD. For example, the amount of a notional entitlement, was taken into account in PZHC, Wilson, and JZWB and Secretary, Department of Social Services [2015] AATA 721.

19. VLYK’s representative contended that there was no requirement to make a complete and comprehensive determination as to an individual’s eligibility and payability for a particular payment in order to consider notional entitlement. Following Ahamed v Secretary, Department of Social Services [2020] FCCA 1245 at [44], notional entitlement is not to be applied as a set off, but one of a number of potential considerations as to whether special circumstances exist.

20. VLYK’s representative argued the Applicant’s contention that “there are too many imponderables to be satisfied with reasonable certainty that VLYK would have qualified for Newstart allowance or that there was a high likelihood of her qualification” was incorrect.

21. VLYK’s representative contented the following information from VLYK’s witness statement, regarding her experience of being on Newstart Allowance for three years immediately prior to her application for CP, should be considered by the Tribunal in regard to her claim for notional entitlement:

    11. I first started receiving Newstart Allowance (now Jobseeker Payment) after I got my permanent partner visa in 2015.

    12. I started receiving Newstart Allowance in 2015. Because of my medical conditions, I provided a number of medical certificates to Centrelink during that time. Later Centrelink assessed and linked me to an Employment Service Provider as they can only accept limited number of exemptions. This is when I was referred into a disability job agency.

    13. It was approximately late 2016 when I first started going to the disability job agency, ‘APM’, in Boronia. I was with them until I was put onto Carer Payment in 2018.

    14. I went for appointments with APM that I was required to go to. They put me on a short course. It went for about three times per week for a number of months. The course was called Adult Education. They were teaching public speaking how to present yourself, and how to build up communication skills and the rest.

    15. After completing my course with APM, I went back to looking for jobs and report back as they required.

    16. I was hoping to teach, that was my passion, but my teaching qualifications were not recognised here in Australia.

    17. I was willing to do job searches and activities with APM. However, I was struggling with my medical problems.

    18. I met with APM every 2 weeks during that time. At each appointment, they asked a few questions, how it had been going for last few weeks, and any other jobs they recommend for me, and anything I was looking at. I always complied with the plan. I always did do what they required me to do. Even when I was not really physically well to do so, I still did it.

1. VLYK’s representative also noted that VLYK qualified for Jobseeker payment immediately after cancellation of her Carer Payment, referring to her witness statement at [50]:

   50. After my Carer Payment was cancelled, I applied for Jobseeker Payment. I was successful in my application, and I am currently with Salvation Army Employment Plus in Rowville as part of my mutual obligations requirement. They contacted me to discuss how many jobs I need to look for a month but I currently have a medical exemption that finishes on 14 July 2021.

2. VLYK’s representative argued that, contrary to the position of the Applicant that there were too many “imponderables”, there is in fact comprehensive and compelling evidence that demonstrates that VLYK would have qualified for Newstart allowance and Jobseeker payment during the debt period. In particular VLYK:

   (a)Met the relevant residency requirements being granted a permanent Partner Visa in early 2015 and remains on this visa.

   (b)Was over 22 years of age but under Pension age during the debt period.

   (c)Was unemployed throughout the debt period. She has remained unemployed since her arrival in Australia.

   (d)Has participated in, and has been willing to participate in, approved activities and / or job searches immediately prior to and subsequent to the debt period (immediately before and after the period of time she was placed on Carer Payment), with the exception of times when she has been medically exempt.

   (e)Was in receipt of Newstart allowance from approximately 2015 until she was placed on Carer Payment. She has been in receipt of Jobseeker payment immediately following the cessation of her Carer Payment.

3. VLYK’s representative argued that, immediately prior to and subsequent to the debt period, VLYK was prepared to enter into, comply with or vary an existing Job Plan to fulfil her mutual obligations requirements, where able. Prior to being placed on Carer Payment, VLYK was undertaking her mutual obligations with Advanced Personal Management Disability Job Services. Immediately after the cessation of her Carer Payment, VLYK was placed with Salvation Army Employment Plus but had been unable to engage with Salvation Army Employment Plus or develop and comply with a Job Plan due to ongoing medical conditions.

4. VLYK’s representative argued Newstart allowance and Jobseeker payment would have been payable to VLYK during the debt period, for the following reasons:

   (a)There is a high probability VLYK would have remained unemployed throughout the debt period. Her tertiary qualifications remain unrecognised in Australia. During the approximately 2-3 years prior to and almost a year following the debt period, engagement with employment service providers and disability employment service providers had failed to assist her in gaining employment.

   (b)She was assessed as having limited capacity to work in an Employment Services Assessment Report dated 7 June 2017. It noted her hours were to be limited to 0-7 hours per week until 6 September 2017. A subsequent Employment Services Assessment Report dated 26 October 2017 assessed her work capacity as 8-14 hours per week. Both reports predicted that VLYK’s assessed capacity to work would increase in the following two years to only 15-22 hours per week with intervention.

   (c)There was a high probability that VLYK would not have had any income to an amount that might have impacted payability of either Newstart allowance or Jobseeker payment during the debt period.  She has been unemployed since gaining the right to work in 2015.

   (d)VLYK has demonstrated satisfaction of the activity test and mutual obligations for substantial periods immediately prior and subsequent to the debt period. There is a high probability she would have continued to do so during the debt period with the exceptions of the times when she was medically exempt.

5. Accordingly, VLYK’s representative submitted that the Tribunal can and should consider the amount that she would have been notionally entitled to, had the Respondent not been deemed to qualify for Carer Payment, and instead remained on Newstart allowance (subsequently transferring to Jobseeker payment from 20 March 2020). This is especially important for the Tribunal to consider, in light of the fact that it was an administrative error that at least partially caused VLYK to be placed on CP and CA. Failure to undertake such a consideration may constitute an error in law.

   Respondent's health

6. The Applicant contended VLYK had not provided medical evidence to corroborate her claim that she suffered ill health including chronic back and knee pain, and a recent illness. They also noted she continues to care for the CR.

7. VLYK’s representative argued that VLYK suffered from numerous chronic medical conditions which made her situation special. They contended that, contrary to the assertions of the Applicant, VLYK had provided supporting medical evidence regarding her chronic medical conditions. VLYK’s representative took the Tribunal to a letter from Dr Yip Thum dated 6 February 2021, which confirmed VLYK suffers from chronic lower back and knee pain and has been seeing a physiotherapist since 2018 for this condition.

8. The Tribunal considered, as AAT1 had, all of VLYK’s circumstances carefully, including the manner in which the debt arose.  The Tribunal finds that Centrelink’s error contributed to the debt because Centrelink officers failed to check the address VLYK provided, failed to consider the evidence of the letter of 9 March 2018 and seem to not have assessed CR’s eligibility, and therefore had failed to adequately assess VLYK’s claim for CP and CA. It is on this basis that the Tribunal finds that special circumstances exist which make it unjust and unfair for the whole of the debt to be recovered from VLYK.

9. The Tribunal, based upon the evidence before it, finds that VLYK’s circumstances as a whole were sufficiently unusual, uncommon or exceptional so as to make her case different from the ordinary, and were otherwise special. VLYK’s circumstances did satisfy section 1237AAD(b) of the Act as the Tribunal found she had a notional entitlement to Newstart allowance in the debt period.

10. The Tribunal finds that VLYK had a notional entitlement to Newstart allowance in the debt period. Whilst the Tribunal noted VLYK had not tested her eligibility for the payment in the debt period, she had previously been in receipt of the payment, has subsequently been granted Jobseeker payment, had complied with her work test activities, was linked to an employment service provider and had been exempted from the work activity test based on her medical condition. These factors indicated to the Tribunal that VLYK would have been eligible to continue to receive Newstart allowance and subsequently Jobseeker payment, if Centrelink had accurately assessed her claim for CP and not granted it to her.

11. The Tribunal determines that VLYK’s debt could be waived in part on the basis of special circumstances. I find, like numerous Members before me, for example in Wilson at [17] and PZHC at [68]: “the likelihood that the Applicant would have received a similar benefit supports a conclusion that his circumstances were out of the of the ordinary”. The Tribunal determines that, had Centrelink not incorrectly granted VLYK Carer Payment, she would have continued to receive Newstart allowance. As such, VLYK’s debt should be reduced by the difference between the amount of CP she received for the period from 30 May 2018 to 28 April 2020 and her notional entitlement to Newstart allowance and Jobseeker payment for the whole of the debt period. The Tribunal determines this portion of the debt should be waived on the basis of special circumstances but does not consider there were special circumstance beyond notional entitlement to waive the entirety of the debt.

12. The Tribunal concurs with  AAT1, that the CA allowance debt could not be waived as this payment was a supplement to which VLYK has conceded she was not entitled, and the special circumstances applicable to her CP payment did not extend to her CA payment.

    Waiver discretionary

13. The Applicant argued that the power to waive the right to recover all or part of the debts under section 1237AAD of the Act is discretionary. It is not automatic. The Secretary is not required to waive simply because the cumulative factors in sections 1237AAD(a), (b) and (c) are satisfied.

14. In Secretary, Department of Social Security v Hales (1998) 51 ALD 695, French J stated at 702:

    ... section 1237AAD of the Act confers upon the Secretary a discretion to waive the right to recover all or part of a debt. That discretion is only enlivened when the Secretary is satisfied that the three conditions specified in paragraphs (a), (b) and (c) of the section are met. It does not follow that the Secretary is then obliged to waive the debt.

    The first condition is negative, the second condition requires consideration of special circumstances that make it "desirable to waive" and the third condition requires the waiver be considered more appropriate than write off. The exercise of the discretion thus enlivened may be informed by other considerations which were not required to support satisfaction of the three necessary conditions.

15. In Mirza and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1309, Deputy President Jarvis stated:

    41. In matters of this kind, it is customary for decision-makers to examine all the relevant facts and decide whether the conditions referred to in paragraphs (a), (b) and (c) of s 1237AAD are met, and if so, then to decide whether or not to exercise the discretion conferred by that section to waive the right to recover all or part of the debt. In the present case, however, I find it unnecessary to consider the question of whether the conditions precedent in paragraphs (a), (b) and (c) have been fulfilled, because even if I were satisfied of those matters, I do not think it appropriate in the circumstances to exercise the discretion conferred on me (standing in the shoes of the Secretary) by s 1237AAD.

    …

    43. … In those circumstances (which included a failure to comply with the Admin Act), I do not think that it would be appropriate to exercise the discretion under s 1237AAD of the Act to waive the right to recover all or part of the debt, even if I were satisfied that the relevant conditions precedent to that discretion had been fulfilled.

16. The Applicant asserts that VLYK’s circumstances are not sufficiently special to warrant exercising the discretion to waive any part of the debt under section 1237AAD of the Act; and there is no injustice in requiring her to repay public monies to which she had no entitlement.

17. VLYK’s representative argued that the same factors that establish the existence of special circumstances in this case, also make it more appropriate to waive rather than write off the debt. Specifically, the factors were:

    (a)Centrelink’s administrative error, at least partially contributed to the overpayment being made;

    (b)VLYK’s sincere belief that she was entitled to Carer Payment and reliance on Centrelink to correctly process the claim;

    (c)The care she provided to the CR;

    (d)Her notional entitlement to Newstart Allowance and Jobseeker Payment during the debt period; and

    (e)Her medical and personal circumstances.

18. The Tribunal found that VLYK’s circumstances were sufficiently special to warrant exercising its discretion to waive part of the debt under section 1237AAD of the Act, however they were not so exceptional to waiver the entirety of the debt. There is no injustice in requiring her to repay public monies to which she had no entitlement.

19. The Tribunal found VLYK had the benefit of receiving monies to which she was not entitled and had the capacity to repay that proportion, much like receiving an interest free loan. Given the unique situation of this case, that of VLYK  seeking payment to provide care to an individual to whom she was not related and not residing with (in effect a stranger who was residing at all times in an aged care facility where he was receiving 24/7 care); the Tribunal concluded that the reduction in VLYK’s debt addressed her special circumstances of notional entitlement and Centrelink’s error in granting the benefit erroneously in the first instance.

    DECISION

20. For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.

I certify that the preceding 158 (one hundred and fifty-eight) paragraphs are a true copy of the written reasons for the decision herein of Ms A E Burke AO, Member

.......................[sgd].......................................

Associate

Dated: 9 August 2021

Date of hearing:	14 July 2021
Advocate for the Applicant:	Mr Tim Noonan
Solicitors for the Applicant:	Services Australia
Respondent:	Ms Emily Singh
Solicitors for the Applicant:	Social Security’s Rights Victoria