VTYB and Secretary, Department of Social Services (Social security second review) - [2025] ARTA 289

VTYB and Secretary, Department of Social Services (Social security second review) [2025] ARTA 289 (14 March 2025)
ReviewNumber:                  2024/4925, 2024/4926, 2024/4927, 2024/4928
Applicant/s:  VTYB
Respondent:  Secretary, Department of Social Services
Tribunal Number:                2024/4925, 2024/4926, 2024/4927, 2024/4928

Tribunal:Senior Member J Longo (second review)
Place:Melbourne
Date:14 March 2025
Decision:The Tribunal affirms the decision under review.

............................[SGD]............................................
Senior Member J Longo
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 161(1B)-161(1C) of the A New Tax System (Family Assistance) (Administration) Act 1999
Catchwords
Family tax benefit – overpayments – member of a couple – section 24 – whether administrative error – whether special circumstances
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
A New Tax System (Family Assistance) Act 1999 (Cth)
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)
Social Security Act 1991 (Cth)
Cases
Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25
Bilanovic and Secretary, Department of Social Services [2019] AATA 3250
Boscolo v Secretary, Department of Social Security [1999] FCA 106
Dranichnikov v Centrelink [2003] FCAFC 133
Kazmierczak and Secretary, Department of Families, Housing and Community Services [2010] FCA 1084
Mears and Secretary, Department of Social Services [2024] AATA 53
Pelka v Secretary, Department of Family & Community Services [2006] FCA 735
Phillip and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 135
Re Lynn Janet Staunton-Smith v Secretary, Department of Social Security (1991) 32
Secretary, Department of Social Security v Hales [1998] FCA 210
Westcott and Secretary, Department of Social Services [2015] AATA 959
Secondary Materials
Department of Social Services, Social Security Guide (Guides to Social Policy Law, version 1.326, 12 February 2025)
Statement of Reasons

Family tax benefit (‘FTB’) is a payment to assist with the costs of a child or children. It is paid to a recipient where they have a child or children in their care. The level of entitlement depends upon a number of variables including total family income each financial year. Generally, recipients provide a family income estimate at the start of each financial year (which may be updated if circumstances change). Upon reconciliation following the end of the financial year, if there has been an underpayment, a top-up may be paid and if there has been an overpayment, a debt will be owed.
The Applicant was paid FTB for the 2018-19, 2019-20 and 2021-22 income (financial) years based upon family income estimates provided by her. In addition to family tax benefit, The Applicant was also paid a Newborn upfront payment of $560 for the 2018-19 financial year. It was later ascertained that The Applicant’s actual family income for the relevant income years was more than estimated resulting in debts. At issue is whether those debts are required to be repaid.
Services Australia - Centrelink (‘Centrelink’) on 29 April 2021, 18 June 2021 and 7 April 2022 respectively, decided to raise and recover family tax benefit debts and a Newborn upfront payment debt from The Applicant as follows:
(a)$21,589.82 for family tax benefit for the 2018-19 income year;
(b)$560 for Newborn upfront payment for the 2018-19 income year;
(c)$23,734.92 for family tax benefit for the 2019-20 income year; and
(d)$6,396.48 for family tax benefit for the 2020-21 income year.
These debts were raised on the basis that The Applicant’s family income estimate for each of the income years was less than the actual combined adjusted taxable income for each income year, consequently she received more family tax benefit than entitled to receive for these periods.
Following internal requests for review of the decisions, the Social Security and Child Support Division of the Administrative Appeals Tribunal (‘the AAT’) on first review affirmed the decisions on 24 June 2024. On 16 July 2024, The Applicant applied to the AAT seeking second review of the decision.
From 14 October 2024, the AAT became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (‘the Transitional Act’), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
In summary, The Applicant’s position is that her family income should only be assessed on the basis of her income and should not include the income of her partner in assessing her entitlement to family tax benefit and Newborn upfront payment.
In summary, the Respondent’s position is that the Applicant is a member of a couple and that there is no reason for the Applicant to not be treated as a member of a couple. The Respondent submitted that due to the combined adjusted taxable income of the Applicant and her partner, she had no eligibility for family tax benefit for the 2018-19, 2019-20, and 2020-21 financial years and has therefore been overpaid. The Respondent also submits that there is no basis for non-recovery of the debts.
For the reasons that follow, the decision under review to raise and recover family tax benefit debts for the 2018-19, 2019-20, and 2020-21 financial years and Newborn upfront payment debt for the 2018-19 financial year are affirmed.
The evidence before the Tribunal comprises the documentation filed by the Applicant and the Respondent and the oral evidence of the Applicant. The Respondent’s legal representative made detailed written submissions, which were provided to the Applicant.

ISSUES

The statutory provisions relevant to this application are found within family assistance law, in particular the A New Tax System (Family Assistance) Act 1999 (‘the Act’) and the A New Tax System (Family Assistance) (Administration) Act 1999 (‘the Administration Act’). Provisions of the Social Security Act 1991 (‘the SS Act’) are also relevant to this application.
The issues which arise in this case are:
·     Whether the Applicant is a member of a couple with her partner in the period 1 July 2018 to 12 October 2020;
·     Is there a special reason not to treat the Applicant as not a member of a couple;
·     Was the Applicant overpaid family tax benefit and newborn upfront payment for the period 1 July 2018 to 12 October 2020, and if so
·     Whether the debts can be written off or waived.

CONSIDERATION

Issue 1: Was the Applicant a member of a couple in the period 1 July 2018 to 12 October 2020?

An individual’s entitlement to family tax benefit is calculated pursuant to Clause 2 of Schedule 3 to the Act. One of the variables relevant to assessing that entitlement is an individual’s adjusted taxable income.
Clause 2(1) of Schedule 3 to the Act provides that an individual’s adjusted taxable income for a particular income year is the sum of:
(a)   the individual’s taxable income for that year, disregarding the individual’s assessable FHSS released amount (within the meaning of the Income Tax Assessment Act 1997) for that year;
(b)   the individual’s adjusted fringe benefits total for that year;
(c)   the individual’s target foreign income for that year;
(d)   the individual’s total net investment loss (within the meaning of the Income Tax Assessment Act 1997) for that year;
(e)   the individual’s tax free pension or benefit for that year;
(f)    the individual’s reportable superannuation contributions (within the meaning of the Income Tax Assessment Act 1997) for that year;
less the amount of the individual’s deductible child maintenance expenditure for that year.
Clause 3 of Schedule 3 to the Act provides, where relevant, that an individual’s adjusted taxable income for an income year is taken to include the adjusted taxable income of their partner. In regard to newborn upfront payment, section 58AA of the Act states that an individual is to be paid a lump sum amount if an amount of newborn supplement is added to their rate of family tax benefit.
Paragraph 4(2)(b) of the SS Act provides that a person is a “member of a couple” if:
(b) all of the following conditions are met:
(i) the person has a relationship with another person, whether of the same sex or a different sex (in this paragraph called the partner);
(ii) the person is not legally married to the partner;
(iii) the relationship between the person and the partner is, in the Secretary’s opinion (formed as mentioned in subsections (3) and (3A)), a de facto relationship;
(iv) both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v) the person and the partner are not within a prohibited relationship.
Subsection 4(3) of the SS Act sets out the factors that must be considered when forming an opinion as to whether or not a married couple are to be determined as living separately and apart on a permanent or indefinite basis:
(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i)any joint ownership of real estate or other major assets and any joint liabilities; and
(ii)any significant pooling of financial resources especially in relation to major financial commitments; and
(iii)any legal obligations owed by one person in respect of the other person; and
(iv)        the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i)any joint responsibility for providing care or support of children; and
(ii)         the living arrangements of the people; and
(iii)        the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i)whether the people hold themselves out as married to, or in a de facto relationship with, each other; and
(ii)the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii)the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people's commitment to each other, including:
(i)          the length of the relationship; and
(ii)the nature of any companionship and emotional support that the people provide to each other; and
(iii)whether the people consider that the relationship is likely to continue indefinitely; and
(iv)whether the people see their relationship as a marriage-like relationship or a de facto relationship.
In determining whether a person is a “member of a couple” it is well established that decision makers must consider all the criteria set out in subsection 4(3) (see above). I am required to reach an objective assessment of the relationship. Therefore, even in cases where the person or persons consider themselves as not being in a marriage-like relationship, in making my own assessment of the evidence, I may conclude differently.
In Re Lynn Janet Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164, the Federal Court discussed the appropriate approach to making an overall assessment of a relationship:
The responsibility of the fact-finding Tribunal is to have regard to all the material facts of each case, treating the matters listed above only as indicators. The Tribunal will make its determination whether a particular man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it.
It should, of course, be clearly understood that no Tribunal is required, in every case, to compile something in the nature of a checklist and then to proceed slavishly to comment on each item in the list. The personal circumstances of people vary substantially. The responsibility of the Tribunal is to extract from the evidence and other material that is before it those items of information that are properly classified as material to its deliberations. If the Tribunal performs that task it will only address those issues that are personal to the decision that is under review; it will then be able to state its findings on material questions of fact with appropriate references to the evidence or other material on which those findings were based. (At 32 FCR 170.)
The Applicant stated at the hearing that she met her partner in 2010 and moved in together on 20 February 2010 and were, at the time they lived in the same house, living in Croydon. They have four children, who were born in 2011, 2013, 2016 and 2018. In 2018, they moved to Ringwood and more recently, in 2020, to Carlton.
The Applicant stated that she is responsible for most of the care of the children. The children are home schooled and she is responsible for their schooling, including organising any excursions, library trips and other activities related to their education. She does the majority of housework and chores and is assisted by the older children. She stated that her partner does assist, on occasion doing some of the cooking and cleaning, but the majority of these tasks are her responsibility.
They occasionally go out as a family, but often she will go out with one of the children. When this occurs, the other children will stay with her partner. Her partner does the same, occasionally going out with the children and she will stay home with the other children. The Applicant spends time with her family for Christmas and her partner will visit his father, on occasion they have done this jointly. They make plans together and know what they are doing. They know each other’s family and are aware of each other’s friends. They celebrate the children’s birthdays as a family.
They share a bedroom, have an intimate relationship, and have meals together with the children, assist each other with the care and discipline of the children as the need arises. They discuss issues relating to the children and their approach. The Applicant confirmed that they were all on the same Medicare card, at least during the period under review. The Applicant confirmed that she is responsible for paying for the utility bills, food and clothing expenses, while her partner pays the mortgage and property related costs. In relation to the costs for food and utilities, her payment of these costs includes her partner’s share of these expenses.
The Applicant stated that she does not believe that they should be treated as a member of a couple because they have always had separate finances and she has nothing to do with his income and other finances. The Applicant accepted that although her partner provides accommodation for her and the children, her finances are separate from her partner. The Applicant stated that she does not know anything about her partner’s finances. She stated that she is unaware if her partner has superannuation and who would be the beneficiary of his superannuation and is unsure whether her partner has a will. She assumes that he does not have a will but does not know for certain. The Applicant stated that while her partner pays the mortgage repayments for the current property where they live, the property is solely in her partner’s name. The applicant confirmed, in response to the Respondent’s question, that she does not pay rent.
The Applicant also confirmed that her partner has owned the previous properties where they resided and was paying the mortgage repayments for these properties. The Applicant confirmed in her responses to questions that she did state in her family tax benefit and jobseeker payment claims that she was in a de facto relationship and currently living together with her partner. The Applicant stated that she had no other choice than to answer in this way. The Applicant also stated that she was unaware of the ANZ joint accounts[1] with her partner.
[1] S8.
The Respondent submits that there is objective evidence with reference to the criteria under subsection 4(3) of the SS Act and the totality of this evidence establishes that the Applicant is a member of a couple. The Respondent submits that there is evidence of joint liabilities, which includes joint banks accounts and loan accounts, in the supplementary documents provided by the Respondent.[2] The Respondent also refers to a 30-year loan of $392,800 made to the Applicant and her partner in July 2010 by ANZ.[3]
[2] Ibid.
[3] S10.
In coming to an overall assessment of the Applicant’s and her partner’s circumstances, I had regard to the case of Pelka v Secretary, Department of Family & Community Services [2006] FCA 735 where French J (as he then was) was considering whether an unmarried person was in a “marriage-like relationship” for the purposes of subsection 4(2) which also required consideration of the matters in subsection 4(3). In that case His Honour stated that the decision maker:
1.Must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3).
2.Must have regard to each of:
(a)    the financial aspects of the relationship;
(b)    the nature of the household;
(c)    the social aspects of the relationship;
(d)    any sexual relationship between the people;
(e)    the nature of the people’s commitment to each other.
3.In having regard to the preceding five matters, must have regard to all factors relevant to each and, in particular, must have regard to the factors listed under each heading in s 4(3).
4.Must specifically consider the total picture of the relationship created by all of these factors bearing in mind that consideration must be given to those which weigh against a marriage-like relationship and those which weigh in favour of it.
5.Must undertake the preceding consideration bearing in mind that a marriage-like relationship is not disclosed solely by any one of the following matters:
(a)    financial cooperation;
(b)    cohabitation;
(c)    a sexual relationship;
(d)    cooperative household arrangements;
(e)    mutual commitment.
The Tribunal understands this is an area of law where consideration must be given to matters of a personal and often complex nature. In this matter I must determine whether, having regard to all the relevant factors, the Applicant and her partner were members of a couple from 1 July 2018. It is clear from the evidence of the Applicant she does not characterise the relationship as being that of a member of a couple based on her evidence.
The Tribunal finds that the Applicant’s and her partner’s living arrangements, as described, is one of a number of factors to be considered. It is clear and uncontroversial that they reside together and have done so since 20 February 2010, in a number of different properties owned by the Applicant’s partner. It is also not in dispute that the Applicant has a sexual relationship with her partner. There are cooperative household arrangements regarding the care of the children and the household. While I accept that the Applicant does the majority of household work and care of the children, her partner also contributes to these arrangements and I find that these household arrangements are shared. I find that socially, there is evidence of their relationship being that of a member of a couple. While it is infrequent that they undertake activities as a family, nonetheless such activities occur. The Applicant was aware of her partner’s family.

I find that there is a level of mutual commitment, particularly towards the children, but also generally to each other. As referred to in the documents, the Applicant and her partner have indicated in respective claim forms for family tax benefit, jobseeker payment and other income support payments that they are partnered and share responsibility for the care of the children. As submitted by the Respondent, which I accept, there is no suggestion that the relationship is unlikely to continue. I also note the decision on first review refers to the Applicant’s partner’s statement to that Tribunal that ‘..the children would be leaving the hearing room. His stated reasons for this were that they are a family and do everything together…’.[4] I find that there is a level of mutual commitment of the Applicant and her partner, both to each other and the children.
[4] T3, 27.
In respect of the Applicant’s and her partner’s financial matters, I have considered the Applicant’s submissions that they are separate. While there are examples of the Applicant and her partner operating separate bank accounts and having separate liabilities, they have had joint liabilities and have joint accounts. The Applicant’s payment of utility bills, food, clothing is for the benefit of her partner. Reciprocally, her partner provides accommodation and the payment of mortgage repayments to maintain accommodation for the Applicant, his own and the children’s benefit. Such an arrangement is not uncommon and the Tribunal accepts the Respondent’s submissions that having separate finances does not mean that the Applicant and her partner have not gained the benefit of pooling resources. I have had regard to the AAT decisions in Phillip and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 135 (‘Phillip’) and Westcott and Secretary, Department of Social Services [2015] AATA 959 (‘Westcott’). As stated in Phillip by Senior Member Toohey:
The fact that members of a couple maintain financial independence does not mean they do not gain some benefit of pooling of resources, because sharing rent and household expenses is a form of pooling of resources. The fact that Mr Phillip and Ms Price do not share income and assets does not mean that he has nothing to pool, or that he obtains no benefit from Ms Price pooling her resources with him to the extent that she does. Nor is he left without any means of supporting himself.
Accordingly, I find that there is evidence of financial cooperation between the Applicant and her partner. The Applicant pays for food and bills and her partner provides accommodation.
I must determine whether, having regard to all the relevant factors, the Applicant and her partner were members of a couple for the period. I am satisfied, based on the above considerations, that the applicant and her partner provide support to each other or that they are committed to a relationship, both in respect of the household, socially and from an emotional perspective. There is evidence of the pooling of financial resources. Based on the evidence, I find the relationship between the Applicant and her partner as one which does have the elements of dependence and therefore conclude that there is sufficient evidence to find that the Applicant and her partner were members of a couple for the period from 1 July 2018 to 12 October 2020. Therefore, the Applicant’s entitlement to family tax benefit and newborn upfront payment should be calculated taking into account the income of her and her partner during the period.

Issue 2 – Is there a special reason not to treat the Applicant as not a member of a couple?

Section 24 of the SS Act provides that, if there is a special reason in the particular case, the person may be treated as not being a member of a couple. Where this discretion is exercised a person is considered not to have a partner, and treated as if they were single, for the purposes of determining their rate of payment of family assistance, or other payments, such as newborn upfront payment, and consequently their partner’s income and assets are not taken into account.
Previous decisions of courts and tribunals have examined the exercise of the discretion under section 24 of the SS Act. As outlined in the Respondent’s submissions, the court in Boscolo v Secretary, Department of Social Security [1999] FCA 106 stated (at paragraph 18):
The word "special" conditioning "reasons" or "circumstances" guards the entrance to the exercise of many different statutory discretions. It is generally futile to search for its meaning in terms of other words. It is in essence instrumental, a direction to the decision-maker that the discretion it constrains is not lightly to be enlivened.
The Respondent submitted[5] that the focus of the Act, as decided by the Federal Court in Kazmierczak and Secretary, Department of Families, Housing and Community Services [2010] FCA 1084, is on the practical ability of the resources of the partner being available for pooling and whether there was some legal or other practical reason the partner member of a couple cannot be treated as sharing income and assets. This approach is reflected in the Social Security Guide at Part 2.2.5.40 and has also been adopted in Bilanovic and Secretary, Department of Social Services [2019] AATA 3250[6] and Mears and Secretary, Department of Social Services [2024] AATA 53.[7]
[5] Respondent’s Statement of Facts, Issues and Contentions [16].
[6] Ibid [38].
[7] Ibid [53].
The Respondent submitted that the Applicant and her partner pooled resources during the period, on the basis that the Applicant’s partner made mortgage payments towards the two properties where the Applicant and her partner were residing during the period of her receiving family tax benefit and Newborn upfront payment. In addition, the Respondent submitted that there was further evidence of pooling in that the Applicant and her partner have accounts in joint names, which are linked to the mortgage accounts for the property in which they currently reside and based on the evidence that the Applicant paid for family bills, food and clothing.
In respect of considering whether the Applicant should be treated as not being a member of a couple, the Applicant submitted at the hearing that she never received the income that Respondent says she received and she should not be attributed the benefit of that income. The Applicant submitted that their finances are separate and that she has never received financial assistance from her partner.
I am not satisfied that there are special reasons in relation to the Applicant’s circumstances which would make it appropriate to exercise the discretion under section 24 of the SS Act in this matter. I find that the Applicant and her partner have had the benefit of pooling financial resources, which is clearly demonstrated by their mutual sharing of housing and the Applicant’s partner meeting the mortgage repayments in relation to their principal home. Furthermore, I find that the Applicant and her partner choose not to pool their resources and not that they are unable to do so, for any legal or practical reason. Accordingly, I conclude that it there is no basis to exercise the discretion under section 24 of the Act and accordingly the Applicant should be treated as a member of a couple for the purpose of calculating her rate of family tax benefit and Newborn upfront payment.

Issue 3 – Was the Applicant overpaid family tax benefit and newborn payment for the period 1 July 2018 to 12 October 2020?

As discussed in the preceding paragraphs above, an individual’s entitlement to family tax benefit is calculated with reference to both an individual’s and their partner’s adjusted taxable income for an income year. Newborn upfront payment is paid to an individual if an amount of newborn supplement is added to their rate of family tax benefit. Newborn supplement is payable to an individual where their family tax benefit Part A rate is greater than nil.
The Respondent submits that the Applicant was paid family tax benefit in 2018-19 income year on the basis of an estimate of income of $43,679 from 1 July 2018 and $42,000 from 11 December 2018. The Respondent submits that the Applicant’s combined adjusted taxable income with her partner for the 2018-19 income year was $273,270. On this basis, the Respondent submits that the Applicant was not eligible for family tax benefit in the 2018-19 income year.
The Respondent also submits that the Applicant was paid family tax benefit in the 2019-20 income year on the basis of an estimate of income of $43,176 from 1 July 2019. The Respondent submits that the Applicant’s combined adjusted taxable income with her partner for the 2019-20 income year was $169,681. On this basis, the Respondent submits that the Applicant was not eligible for family tax benefit in the 2019-20 income year.
The Respondent further submits that the Applicant was paid family tax benefit for the period 1 July 2020 to 12 October 2020 on the basis of an estimate of income of $44,300 from 1 July 2020. The Respondent submits that the Applicant’s combined adjusted taxable income with her partner for the 2020-21 income year was $322,056. On this basis, the Respondent submits that the Applicant was not eligible for family tax benefit for the period 1 July 2020 to 12 October 2020.
According to section 71 of the Administration Act, if a person receives more family tax benefit than they are entitled to receive, then the amount above that entitlement is a debt due to the Commonwealth. In respect of newborn upfront payment, this payment is only payable if the rate of family tax benefit is greater than nil. Based on the calculations as provided, I am satisfied that the Applicant was not entitled to family tax benefit for the 2018-19, 2019-20 income years and for the period from 1 July 2020 to 12 October 2020. I am also satisfied that the Applicant was not entitled to newborn upfront payment as paid to her in the 2018-19 income year as she was not eligible for family tax benefit. Consequently, there are debts due to the Commonwealth of family tax benefit of $21,589.82 for the 2018-19 income year; $23,734.92 for the 2019-20 income year, and $6,396.48 for the period 1 July 2020 to 12 October 2020. I also find that there is a debt of $560 of newborn upfront payment for the 2018-19 income year.

Issue 4 - Are there grounds for write off or waiver of recovery of all or part of the debts?

Section 82 of the Administration Act provides that a debt due to the Commonwealth under the family assistance law is recoverable by one or more of the methods set out in that section. Usually, a debt must be repaid unless the law provides otherwise. As referred to by the Respondent in their Statement of Facts, Issues and Contentions (‘SFIC’), French J recognised this general premise in Secretary, Department of Social Security v Hales [1998] FCA 210 (‘Hales’) where it was stated as follows:
The taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to receive will be recovered, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the persons concerned. However, the confining of a recovery regime by rigid rules, particularly in this area of the law, is likely to be productive of unfair or harsh outcomes in some of the great variety of fact situations that can arise. There are provisions in the Act which recognise that reality. They relate to the writing off and the waiver of debts otherwise due to the Commonwealth. This case primarily concerns the proper construction of a section of the Social Security Act 1991 (Cth) which provides for the waiver of debts where special circumstances are found to exist. There is a tension in the construction of such provisions between the needs for certainty of application and flexibility of response to the situations that may arise from time to time.
Sections 95, 97 and 101 of the Administration Act permit writing off or waiving of a debt or part of a debt in certain circumstances and are of potential relevance.

Write-off

Pursuant to section 95 of the Administration Act, recovery of a debt can be written off – in other words, recovery can be temporarily suspended – only if certain strict conditions are met, such as the person’s whereabouts are unknown or they have no capacity to repay the debt. Section 95 has no application in The Applicant’s circumstances and write off is not permitted pursuant to section 95 of the Administration Act.

Sole administrative error waiver

Section 97 of the Administration Act provides that a debt (or the relevant proportion thereof) must be waived if it was attributable solely to an administrative error made by the Commonwealth, where the amount overpaid was received by the person in good faith. Further, where the debt is raised before specified time periods, including the end of the income year after the income year in respect of which the debt accrued, for waiver to occur under section 97 of the Administration Act, the debtor must demonstrate that being required to repay the debt would cause them severe financial hardship.
The Respondent contended that there was no sole administrative error on the part of the Commonwealth. The Respondent submits that the debts are due to the Applicant’s failure to comply with notices and notify of any changes in her and her partner’s taxable income during the period. In essence, the debts have arisen because the Applicant has provided inaccurate estimates of her family income for the relevant income years on the basis that she was not a member of a couple and that her and her partner’s finances were separate.
I find that there was no administrative error on the part of the Respondent. The cause of the debt is attributable to the Applicant’s under-estimation of income, whatever the cause of that under-estimation. It follows that wavier cannot occur pursuant to section 97 of the Administration Act.
As I have found that there was no error by the Respondent such that section 97 of the Administration Act has no application, it is not necessary for me to consider whether the overpaid amounts were received in good faith by The Applicant.

Special circumstances waiver

Section 101 of the Administration Act provides for waiver of recovery of all or part of a debt as follows:
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a)  the debt did not result wholly or partly from the debtor or another person knowingly:
(i)  making a false statement or a false representation; or
(ii)  failing or omitting to comply with a provision of the family assistance law; 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.
I am satisfied that the Applicant did not knowingly make a false statement or a false representation or knowingly fail or omit to comply with a provision of the family assistance law. I have considered the Respondent’s submissions in this regard, and the case authorities referred to in relation to the issue. I am, however, satisfied that the Applicant genuinely did not believe that she was, and still is, a member of a couple and did not believe she was required to provide an estimate of family income, for family tax benefit, which should include her partner’s income. The Applicant was firmly of the view that she was not a member of a couple. She stated that she was not aware of her partner’s financial circumstances and not aware of his income.
I note the Respondent’s submissions that the Applicant, in her claims for family tax benefit on 11 December 2018, 10 March 2021 and 27 July 2021 recorded that she was partnered since 20 February 2010 and that this shows that the Applicant failed to comply with her recipient notification obligations regarding family income for family tax benefit. The Applicant’s oral evidence was that she tried to explain her circumstances and their separate finances but the Applicant states she was told that it is still considered as de facto and that she was required to respond accordingly on the form. I accept that the Applicant responded as instructed even though she did not believe that she should be considered as partnered.
I therefore find that the debts did not result wholly or partly from the Applicant or any other person knowingly making a false statement or false representation or knowingly failing or omitting to comply with one of the Acts.
As regards “special circumstances”, the term is not defined in the legislation. The Federal Court and the AAT have considered the issue of special circumstances on a number of occasions. In every case, the individual circumstances of the case were examined to determine whether the circumstances were such that it would be unjust, unreasonable or inappropriate for the debt to be recovered. In particular, the Full Court of the Federal Court in the matter of Dranichnikov v Centrelink [2003] FCAFC 133 determined that whether there are special circumstances in a particular case is dependent on whether there are circumstances that would distinguish the case from the usual case. In the Tribunal’s view it is also appropriate, when considering the exercise of this discretion, to have regard to the objects of the Act in the recovery of social security overpayments. The Federal Court in Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25 emphasised that it is not the intention of Parliament that the exercise of this discretion be confined to the “exceptional” case, but rather that there is something that distinguishes the case from the ordinary or usual case.
Further, for special circumstances to exist there must be some factors apart from financial hardship alone, which distinguish the case and set it apart from other similar cases. In considering the waiver provision, I am mindful of the comments of French J in Hales that persons who receive money they are not entitled to receive are generally expected to repay the monies.
The only submissions regarding the Applicant’s special circumstances was relating to her financial circumstances and that she does not, in her view, have the benefit of being able to pool resources with her partner and feels that she is being penalised. The Applicant’s Statement of Financial Circumstances states that she is required at times to ask for financial help and also regularly goes to local charity church for food parcels/ vouchers and Salvos for clothes, shoes and bedding. The statement also states that she is constantly behind with utility bills.[8] She is currently in receipt of jobseeker payment and her partner is receiving family tax benefit, carer payment and carer allowance. No other submissions regarding her circumstances, apart from the unfairness of the decision of the Respondent, were provided.
[8] T2, 7.
The Respondent’s written and oral submissions regarding special circumstances in the matter were that the financial circumstances of the Applicant were not unusual or uncommon. The Respondent submitted that the evidence does not indicate that the Applicant’s circumstances are sufficiently unusual or uncommon so as to make her case different from the ordinary run of cases.
I have taken all matters into account, both individually and cumulatively in relation to the Applicant’s circumstances. I am not satisfied that the Applicant’s circumstances considered individually or cumulatively make it unfair for the overpaid family tax benefit and newborn upfront payment to be repaid nor that it would be unjust, unreasonable or inappropriate to recover the debts. The Applicant received in excess of her entitlement in circumstances where she has resources available to her to repay overpaid public monies. I am not satisfied that there are special circumstances in the Applicant’s case, other than financial hardship alone, that make it desirable to waive the debts or any part thereof.

It follows that section 101 of the Administration Act has no application.
There being no other relevant legislative provisions, I conclude that the debts must be recovered.

DECISION

The decision under review is affirmed.

1. I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member J. Longo

..............................[SGD]......................................
Associate
Dated: 14 March 2025

Date of hearing: 16 December 2024

Applicant: Self-represented

Solicitors for the Respondent: Mr Tim Noonan, Services Australia

Date of hearing:	16 December 2024
Applicant:	Self-represented
Solicitors for the Respondent:	Mr Tim Noonan, Services Australia