Waqar; Secretary, Department of Social Services and (Social services second review) - [2020] AATA 1493

Waqar; Secretary, Department of Social Services and (Social services second review) [2020] AATA 1493 (27 May 2020)
Division:General Division
File Number:2019/1545
Re:Secretary, Department of Social Services
APPLICANT

Shahla WaqarAnd
RESPONDENT

DECISION
Tribunal:D Cox, Member

Date:27 May 2020
Place:Adelaide

The decision made by the Administrative Appeals Tribunal (Social Services and Child Support Division) on 19 February 2019 is set aside.
..........[sgnd]..............................................................
Member D Cox
Catchwords
Eligibility for parenting payment - Income test – Benefits and Entitlements - family tax benefit and childcare benefit – debt waived – income notification obligation – sole administrative error - Decision under review set aside
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Cases
Barnes and Secretary, Department of Social Services [2014] AATA 786
Jazazievska and Secretary, Department of Family and Community Services (2000) FCA 1484
Secretary, Department of Education, Employment and Workplace Relations and Brookes [2008] AATA 501 (17 June 2008)
Sekhorn and Secretary Department of Family and Community Services [2003] FCAFC 190
REASONS FOR DECISION
Member D Cox
27 May 2020
INTRODUCTION

On 19 February 2019 in accordance with s 1237A of the Social Security Act 1991 (the Act), the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) made a decision to waive in full a debt for an overpayment of parenting payment (partnered) (PPP) to Shahla Waqar of $37,988.13 for the period of 18 March 2015 to 7 May 2018. The AAT1 had found that the overpayment was solely attributable to administrative error, the error was not corrected for more than six weeks after the first payment that gave rise to the debt was paid and the overpayment was received in good faith.[1]
[1] T2, p8.
ISSUES AND LEGISLATION
Pursuant to subsection 1237A(1) of the Act, the applicant did contest the finding that the debt is attributable solely to an administrative error made by the Commonwealth and that the debtor received in good faith the payments that gave rise to the debt.[2]
[2] T2, P9-10.
Pursuant to section 1236 of the Act, the applicant states that recovery of $37,988.13 would not cause financial hardship as the respondent could claim a Centrelink income support payment and the respondent’s combined income, for family tax benefit purposes is $53,559 for the 2019-2020 financial year, therefore the debt should not be written off for a period.
Pursuant to section 503 of the Act, which says that the rate of parenting payment is worked out using the rate calculator at section 1068B of the Act, the respondent did not contest that there is an overpayment and that it has been calculated correctly.
Pursuant to section 1237AAD of the Act, the respondent stated that, if the Tribunal finds that the overpayment was not caused solely by administrative error, the respondent did not knowingly: make a false statement or false representation; or fail or omit to comply with a provision of the Act and it is therefore open to the Tribunal to provide a waiver for special circumstances. The applicant accepted that the respondent did not knowingly fail to comply with her notification obligations under the Social Security (Administration) Act 1999. The applicant said there are no special circumstances that exist that would warrant exercising the discretion to waive all or part of the debt under section 1237AAD of the Act and no injustice in requiring the respondent to repay public monies which she had no entitlement to receive.
BACKGROUND
During the debt period the respondent received parenting payment (partnered) and her partner received family tax benefit (FTB). He also received newstart allowance (NSA) for part of the debt period.
In this review the applicant claims that the overpayment of PPP arose because the respondent did not fully disclose her partner’s income to the department during the debt period.
The respondent was in receipt of PPP from November 2012. She was occupied with home duties and did not engage in paid employment. Her partner had been a student and then an UBER driver, during which time he received newstart allowance. He was subsequently employed in the construction industry.
The department sent the respondent and her partner separate letters and reporting requirements in relation to the specific payments each was claiming, both periodically and in response to changes in their circumstances that the department became aware of.
EVIDENCE
The Tribunal considered the following evidence taken from the department’s records and submissions regarding its communications sent to the respondent:
·On 17 March 2014 the department sent a ‘Reporting for Parenting Payment’ letter advising she must report every two weeks about where she or her partner worked and what she or he earned.[3]
[3] S6 p283 - p285.
·On 10 June 2014 the department sent a letter advising that her PPP was paid at a reduced rate for the preceding Centrelink fortnight and that her partner’s fortnightly income was $0.00. (This was at odds with other information held by the department, as described in paragraph 11).[4]
[4] S4 p199 & S6 p277.
·On 2 September 2014 a department record shows an online report that she had no income for the period 19 August 2014 to 1 September 2014, but her partner had earnt $1,416 for 59 hours work for Conslab Concrete Pty Ltd. However, the earnings were not applied because the “Customer answered no to the question: Do you have any changes to declare to Centrelink that you have not already told us about?” The “Customer was advised their report was not successful and to contact Centrelink for their report to be completed and payment made.”[5]
[5] T14 p149.
·On 12 November 2014 the department sent a letter advising her of future entitlements and reminding her of her obligation to report changes in her and her partner’s circumstances. The letter said her PPP payments were based on her partner’s fortnightly income of $0.00. The letter also said; “You must tell us if: your partner’s total personal income goes over $914.00 a fortnight.”[6]
[6] S6 p265 & p269.
·On 13 November 2014 the department sent a letter informing her that she had been taken off fortnightly reporting. The applicant said the letter was issued automatically after advice from the Department of Home Affairs that she had departed Australia on 12 November 2014. The applicant told the Tribunal that; “Relieving the respondent of the requirement to report fortnightly, because she was no longer in Australia, did not absolve her obligation to advise the department of any change in her circumstances, including income.” The applicant also noted that the letter also said “You must tell us within 14 days about events or changes in circumstances affecting your payment (see the enclosed form ‘Changes you must tell us about’ for details).”[7]
·On 24 December 2014 the department sent a letter advising that her PPP had been suspended because she was still overseas.[8]
·The respondent’s PPP payments remained suspended until she returned to Australia and contacted the department on 3 February 2015. They were restored from 5 February 2015. She was not placed back on reporting.[9]
·On 3 February 2015 the department sent a letter advising that her PPP had been restored. The letter also advised that her regular fortnightly payment would be $465.50 and, amongst other information, that her payment was based on her partner’s fortnightly income of $0.00.[10]
·On 30 July 2016 the department sent her a letter headed “Your Centrelink Statement for Parenting Payment” showing her payments for the preceding six months. The letter said “Please check the information on this statement carefully. If the details on this statement are correct there is no need to contact us. If your circumstances have changed please contact us within 14 days. This request is an information notice given under social security law.”[11]
·On 29 August 2016 the department sent a letter advising that her PPP had been suspended because she was still overseas. The letter informed her of the payment that would be made on 31 August 2016 and advised her that it was calculated on the basis of her partner having a fortnightly income of $0.00.[12]
·On 4 November 2016 the department sent a letter advising that her PPP had been restored and that her regular fortnightly payment was $485.30. The letter said; “Your payment is worked out using both you and your partner’s incomes” and that her partner’s fortnightly income was $0.00.[13]
·On 6 October 2017 the department sent a letter headed “Your Centrelink Statement for Parenting Payment” showing her payments for the preceding six months. The letter also said; “Earnings information – You need to tell us your earnings before tax and other deductions such as salary sacrifice. The amount must be for work performed in the Centrelink fortnight prior to notification and only the amount earned in the Centrelink fortnight, this may be different from your salary pay fortnight.”[14]
·On 15 January 2018 her departmental record shows that her partner was working as an UBER driver.[15]
·On 20 April 2018, following an internal electronic data transfer, the department sent the respondent a “Request for information” letter.[16]
[7] S6 p261.
[8] S6 p257.
[9] S4 p167 & S6 p251.
[10] S4 p167.
[11] S6 p243.
[12] S4 p101 & S6 p241.
[13] S4 p97 & S6 p235.
[14] S4 p39.
[15] T14 p143.
[16] S6 p223.
The Tribunal considered the following evidence taken from the department’s records and submissions regarding its communications sent to the respondent’s partner:
·On 17 February 2014 the department sent a letter headed ‘Reporting for Newstart Allowance’ advising that he must report every two weeks where he and his partner worked and what they earned.[17]
[17] S4 p39.
·On 8 March 2014 the department’s record shows that he obtained employment with Conslab Concrete Pty Ltd. After six consecutive fortnights his NSA was cancelled.[18]
[18] T14 p147.
·On 1 April 2014 the department’s online records show he reported working for 56 hours for Conslab Concrete Pty Ltd and earning $1,344.00. Similar earnings were on the record until 10 June 2014. However, screen shots also show his reported earnings until 10 November 2014 with the respondent’s PPP payments being reduced accordingly. (This was at odds with a letter sent to the respondent on that date as described in paragraph 10).[19]
[19] S2 p3.
·On 15 May 2014 the department sent him a family assistance letter advising that he could update his family income estimate for the 2014-2015 financial year. The letter said, “Avoid an overpayment: Our records show that your estimate used to determine your rate of Family Tax Benefit is less than the most recent family income.”[20]
[20] S4 p204.
·On 25 November 2014 the department sent him a reconciliation letter headed “About your Family Tax Benefit 2013-2014” which advised that his entitlement had now been checked using his annual family income and he would be paid $1,806.75.[21]
[21] S4 p185.
·On 17 December 2014 the department sent a letter advising that he would not be paid family assistance because his children were overseas.[22]
[22] S4 p179.
·On 24 December 2014 the department’s record shows that he updated his estimate of combined income for family assistance to $45,000.[23]
[23] T15 p176.
·On 6 January 2015 the department sent a letter advising that his regular rate of FTB of $501.48 would be paid on the basis of a family income of $45,000.[24]
[24] S4 p173.
·On 14 May 2015 the department sent a family assistance letter advising that he could update his family income estimate for the 2015-2016 financial year and that the existing estimate from 1 July 2015 was $31,403 for him and $14,182 for his partner.[25]
[25] S4 p161.
·On 18 May 2015 the department’s record shows that he updated his estimated family income for FTB to $50,000 for the 2014-2015 financial year and $58,000 for the 2015-2016 financial year.[26]
[26] T15 p177 & p178.
·On 27 June 2015 the department sent a letter headed “Your family assistance” which informed him of his rate of payment and said that the FTB Part B lower earner’s income was $14,000.[27]
[27] S4 p149.
·On 7 July 2015 the department sent a letter advising him of the information it held on his record. It showed his newstart allowance and energy supplement had been cancelled on 11 June 2014 and his regular payment of FTB paid from 25 June 2014. The letter did not provide details of his income or assets.[28]
[28] S4 p149.
·On 4 August 2015 the department sent a letter advising his regular payments of FTB. The letter did not provide details of his income.[29]
[29] S4 p143.
·On 23 November 2015 the department sent a letter advising that his FTB entitlements for the 2014-2015 financial year had been reconciled and he would be paid $1,795.11.[30]
[30] S4 p139.
·On 19 May 2016 the department sent a letter advising there had been changes to family assistance payments and inviting him to update his family income. The letter said the department had made an estimate of $44,600 for him and $14,210 for his partner based on increasing his current income estimate in line with changes in Australian Average Weekly Earnings.[31]
[31] S4 p123.
·On 16 June 2016 the department sent him a letter advising his regular rate of payment for FTB. The letter said the FTB Part B lower earner’s income was $14,210.[32]
[32] S4 p123.
·On 1 July 2016 the department’s record shows he updated his combined income for FTB to $64,210 for the 2016-2017 financial year.[33]
[33] T15 p179.
·On 10 August 2016 the department sent a letter providing an income statement showing his FTB, energy supplement and school kids bonus payments. The letter said, “There are no income details to report.”[34]
[34] S4 p103.
·On 29 August 2016 the department sent a letter advising that his family assistance had been cancelled because his children had been overseas for more than six weeks.[35]
[35] T15 p221 & p179.
·On 4 November 2016 the department sent a letter advising his regular rate of payment for FTB. The letter said the FTB Part B lower earner’s income was $15,000.[36]
[36] T 15 p180
·On 8 December 2016 the department sent a reconciliation letter headed “About your Family Tax Benefit 2015-2016” which advised that his entitlement had now been checked using his annual family income and he would be paid $1,811.70.[37]
[37] S4 p93.
·On 4 March 2017 the department sent a letter advising his regular rate of payment for FTB. The letter said the FTB Part B lower earner’s income was $15,000.[38]
[38] S4 p76.
·On 18 May 2017 the department wrote advising him there had been changes to family assistance payments and inviting him to update his family income. The letter said the department had made an estimate of $50,800 for him and $15,240 for his partner based on increasing his current income estimate in line with changes in Australian Average Weekly Earnings.[39]
[39] S4 p76.
·On 20 June 2017 the department sent a letter advising his regular rate of payment for FTB. The letter said the FTB Part B lower earner’s income was $15,240.[40]
·On 21 June 2017 the department sent a letter advising his regular rate of payment for FTB. The letter said the FTB Part B lower earner’s income was $15,000.[41]
·On 3 August 2017 the department sent a letter headed “Your family assistance” which informed him of his rate of payment and said that the FTB Part B lower earner’s income was $15,000 and that the rate of FTB Part B had been reduced because there was no longer a child under five years in his care.[42]
·On 8 September 2017 the department sent an income statement informing him of his regular rate of FTB. The letter said, “There are no income details to report.”[43]
·On 25 October 2017 the department sent an income statement informing him of his regular rate of FTB. The letter said, “There are no income details to report.”[44]
·On 3 November 2017 the department sent an income statement informing him of regular rate of FTB. The letter said, “There are no income details to report.”[45]
·On 20 November 2017 the department sent him an income statement informing him of his regular rate of FTB. The letter said, “There are no income details to report.”[46]
·On 8 December 2017 the department sent an income statement informing him of his regular rate of FTB. The letter said, “There are no income details to report.”
·On 1 February 2018 the department sent a reconciliation letter headed “About your Family Tax Benefit 2016-2017” which advised him that his entitlement had now been checked using his annual family income and he would be paid $1,549.16.[47]
CONSIDERATION
[40] S4 p76.
[41] S4 P71.
[42] S4 p65 - 51.
[43] S4 p63 - p65.
[44] S4 p57 - p59.
[45] S4 p55.
[46] S4, p53.
[47] S4 p47.
OBLIGATION TO REPORT INCOME
The evidence referred to in paragraphs 10 and 11 shows that the department directed correspondence to the respondent regarding her PPP entitlements and to the respondent’s partner in relation to his entitlements for both NSA and FTB. The correspondence and social security notices sent to the respondent made it clear that she was responsible for reporting her partner’s income for the purpose of ensuring that her PPP payments were calculated correctly. Similarly, her partner was responsible for reporting their combined income for the purpose of ensuring that his NSA and FTB payments were calculated correctly.
In her evidence to the Tribunal the respondent said she had relied on the reports her partner had made to the department about his income. He had responded to requests by the department to update his income details and she believed that this information was being used to calculate her PPP payments. Because the department had this information, she had no reason to question whether her PPP payments were being calculated correctly.
The Tribunal received no evidence that when the respondent’s partner provided new estimates of combined income in respect of his FTB payments that he specifically sought to update the respondent’s PPP information. His and the respondent’s evidence was that they both believed their details were linked for all the Centrelink payments they received.
The respondent’s partner’s income was reported, not only until his NSA was cancelled on 10 June 2014 because he had exceeded the income limit for the previous twelve weeks, but also for the respondent’s PPP until 10 November 2014, and her payments were reduced accordingly. The respondent’s partner’s income was not reported in respect of her PPP payments after she was sent a letter by the department dated 13 November 2014. The letter was headed ‘Changes to Your Reporting’ and said:

Information about your Parenting Payment – Partnered
·As your and/or your partner’s circumstances have changed, you are no longer required to report every two weeks to get paid unless you start working again. If you start working again you must notify us within 14 days.
·You must tell us within 14 days about events or changes in circumstances affecting your payment (see the enclosed form ‘Changes you must tell us about’ for details).
·
If your family income has changed from what you previously told us, please call 136 150 to provide a new estimate for Family Tax Benefit.

Amongst other things the form ‘Changes you must tell us about’ said:
This information notice is given under social security law by a Commonwealth entity. You have an obligation to provide us with all the information that is relevant to your payment. Giving false or misleading information is a serious offence. Information provided by you may be checked under our data-matching programs.

You must tell us with 14 days (28 days if residing outside Australia) if any of the following happens to you/your partner, or you become aware that any of the following is likely to occur.
·You can tell us about these changes via self-service (online or phone), in writing (fax or post) or by visiting one of our Service Centres. If you don’t tell us about any changes, you could have a debt. If you have a debt you may have to pay all or some of the money back.
Employment

·start, stop, recommence or change work in any form of profession, trade business or self-employment
·
income from employment changes (the amount earned goes up or down)

To help us pay you the right amount you should bring your payslips with you.

The applicant gave evidence that the letter of 13 November 2014[48] had been generated automatically when the department received information from the Department of Home Affairs that the respondent had departed Australia on 12 November 2014[49]. The applicant said that relieving the respondent of the requirement to report fortnightly because she was no longer in Australia did not absolve her obligation to advise the department of any change in her circumstances, including income.
[48] S6 p261
[49] S6 p265
On the day before, the department sent the letter advising the respondent, she no longer needed to report fortnightly, it sent a letter advising her PPP entitlements and reminding her of the obligation to report changes in her or her partner’s circumstances. The letter said her PPP payments were based on her partner’s fortnightly income of $0.00.
On 24 December 2014 the department wrote to the respondent advising that her PPP had been suspended because she was still overseas.
The respondent’s PPP payments remained suspended until she returned to Australia and contacted the department on 3 February 2015. It was restored from 5 February 2015 but she was not placed back on reporting.
PAYMENTS NOT RECEIVED IN GOOD FAITH
On 3 February 2015 Centrelink sent the respondent a letter advising that her PPP had been restored. The letter said that her regular fortnightly payment would be $465.50 and, amongst other information, that her payment was based on her partner’s fortnightly income of $0.00.
This was more than double the rate of PPP the respondent had been paid before the reports of her partner’s income had ceased being placed on her record in November 2014. Such an increase, without an obvious explanation, should have caused the respondent or her partner (the payments were paid into a joint bank account), to consider whether there was an entitlement to the higher payments.
In Jazazievska and Secretary, Department of Family and Community Services (2000) FCA 1484, the Federal Court said:

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…
The Tribunal finds, that the payments after 10 November 2014 were not received in good faith.
Information from the respondent’s partner’s employers shows that during the period from 10 November 2014, which was the last report of the respondent’s partner’s income for PPP purposes, to the 7 May 2018, which is the end of the debt period, he had total gross income of $174,246.70 all of which went unreported.
SOLE ADMINISTRATIVE ERROR TEST
The respondent’s advocate said that the letter of 13 November 2014 was an error and should not have been sent. In support of this contention she put forward that:
“A possible explanation would be that the system presumed the reported earnings were those of Mrs Waqar and that those earnings would cease because she was overseas. The letter of 13/11/14 was a system error but Mr & Mrs Waqar were entitled to rely on it.”
The Tribunal must accept the applicant’s explanation that the letter was automatically generated because the department had received information from the Department of Home Affairs that the respondent had left Australia the previous day. That information was accurate and therefore the letter was not a system error as contended by the respondent’s advocate.
If there is any deficiency in this piece of correspondence it is that it did not specify the nature of the change of circumstance, although there was only one that had occurred at that particular time, which was the respondent’s departure overseas. Had it provided that piece of information it might have reduced the possibility that the respondent would misconstrue the meaning of the letter to believe that there was no further obligation to report her partner’s income for PPP purposes. Presumably that is what the respondent’s advocate meant in arguing the respondent was entitled to rely on the letter, since no further declarations of the respondent’s partner’s income were made for PPP purposes. However, the respondent’s own misinterpretation of a letter that was not inaccurate cannot be said to fall into the category of an administrative error by the Commonwealth.
A second deficiency in the department’s administration was that the respondent was not placed back on reporting when her PPP was reinstated on 3 February 2015. However, as the correspondence of 12 November 2014, 13 November 2014 and 3 February 2015 shows, the respondent was repeatedly told that the correct calculation of her PPP was dependent on the department being advised of her and her partner’s circumstances.
A third deficiency is that from 10 June 2014, which was shortly after her partner’s NSA was cancelled, the respondent began receiving letters, telling her that her PPP payments were based on him having a fortnightly income of $0.00. This was despite the fact that the department’s records show his income continued to be reported until 10 November 2014 with the respondent’s PPP payments being reduced accordingly. However, this administrative imperfection was not a cause of the debt.
These administrative deficiencies do not constitute administrative error as the sole cause of the debt, as would be necessary to require a waiver under section 1237A of the Act. Selway J in the Full Federal Court decision of Sekhorn and Secretary Department of Family and Community Services [2003] FCAFC 190 said:
35.The ordinary or usual interpretation of the phrase ‘attributable solely to’ is that it refers to the single or sole cause of the relevant act or event. The word ‘attributable’ means ‘capable of being attributed’. It involves an objective assessment of causation.

The words ‘a debt attributable solely to an administrative error’ can be paraphrased as meaning that the only cause that objectively can be ascribed to the relevant debt is an administrative error…
The Administrative Appeals Tribunal in Barnes and Secretary, Department of Social Services [2014] AATA 786 said:
47. Sole administrative error does not require that Centrelink made no mistakes, but that the debtor made no contribution to the error…
49.[the social security] system is a system of mutual entitlements and obligations. A person may establish that they have entitlements, but the entitlements come with obligations, central among which is the obligation to keep Centrelink informed…
The respondent had an obligation to read all of the letters and notices that were sent to her and to advise the department if any of the information in them, which might affect her payments, was incorrect.
The respondent was asked whether she had responded to the letter of 12 November 2014, which said she must tell the department if her partner’s total personal income was over $914 per fortnight. She replied, “No.”
The respondent was asked what she did when she received the letter, she was sent on

3 February 2015 when her PPP was restored after she had returned to Australia. Amongst other things the letter said that her payment was based on her partner’s fortnightly income of $0.00. She replied; “He was reporting, what do I have to do? He was earning. I was earning zero.”
There were two subsequent letters informing the respondent that her partner’s income was $0.00. She was also sent two more statements showing her recent PPP payments. If any part of the debt had been attributable solely to administrative error, which it was not, her failure to bring the department’s attention to any inaccuracy in the information, which was relevant to her rate of payment contained in these letters, would have resulted in the respondent being held to have contributed to the debt.
The respondent told the Tribunal that her partner’s income was reported by him and that as Centrelink were aware of their relationship, that the reports of income changes by him should have been applied to the calculation of her PPP payments. It was the case that the respondent’s partner did all the reporting. The respondent said; “I never reported to Centrelink for anything at all my husband did it.”
DIFFERENT INCOME TESTS FOR FTB AND PPP
A report of combined income for FTB purposes is not a report of combined income for PPP purposes for four significant reasons. The first is that the means test for FTB is applied to the recipient’s income over a year whereas the means test for PPP is applied to the recipient’s income over a specific Centrelink pay fortnight. There may be significant differences between these fortnightly entitlements for PPP and the entitlement of the recipient to FTB based on income averaged over the year. The second is that FTB is paid against an estimate of the recipient’s combined income made either by the department or nominated by the recipient of the payment. At the end of the financial year the Australian Taxation Office provides the department with the recipient’s actual adjusted taxable income and this is used to reconcile the year’s FTB payments. This may result in either a top-up payment or a debt, depending on whether the estimated income was above or below the actual income. Many recipients of FTB provide a low estimate of their combined income to ensure that they receive a payment not a debt at the end of the year when their payments are reconciled. Thirdly, what is included in the income calculation differs. Fourthly, FTB and PPP are paid under different legislation and administered separately. For these reasons an update of information for FTB purposes does not satisfy the income notification obligations for PPP purposes.
This is a matter which has been considered by the Tribunal in other cases, including
Secretary, Department of Education, Employment and Workplace Relations and Brookes [2008] AATA 501 (17 June 2008), when it said:

12.The income tests for FTB and PPP are different. FTB requires recipients to estimate a combined taxable income for the next financial year. PPP payments are assessed on a fortnightly income test for the person and her/his partner. What is to be included in the calculation of income also differs…

14.Notwithstanding a lack of initiative on Centrelink’s part in not sending regular letters to Ms Brooks about her income for PPP purposes and in failing to be pro-active when its computer screen showed that Ms Brookes was receiving payments other than FTB, there was also error on the part of Ms Brooks in not providing updates about income for PPP purposes. Therefore, the Tribunal finds that the debt was not attributable solely to administrative error by the Commonwealth and the debt cannot be waived on this ground.
The respondent put it to the Tribunal that this separation of these two categories of payments should not exist:

“The respondent contends that records of members of a couple should be co-related and the information updated as it comes to hand. Given the reported income of Mr Waqar for most of the period of this debt, Mrs Waqar should not have been on income support payments. Centrelink personnel are aware of the Centrelink/FAO disconnect and should be pro-active to curtail the debt possibility. Centrelink recipients, new to this country, have no way of knowing that there is a disconnect.”
However, the department gave evidence that the respondent’s partner was provided with warnings that there was a requirement to report separately for the two types of payments. The respondent’s partner always reported changes in his estimates of combined income online and, from May 2014, when he did so he received the following information from the FAO:
“Important – if you and/or your partner receive an income support payment such as Parenting Payment, Newstart, or Disability Support Pension, you will also need to report any new, or changed regular earnings by contacting Centrelink.”
Given these warnings and the requirements set out in the letters described in paragraphs 10 and 11, the Tribunal makes a finding of fact that both Centrelink and the FAO properly advised both the respondent and her partner what the income reporting requirements were for PPP.
The test for whether a debt is due solely to administrative error is not against the standard of administration contended by the respondent, that is for the department to co-relate all information for a couple between different types of payments. Nor is it one that requires the department to correct for the respondent’s failure to report as she was instructed.
SPECIAL CIRCUMSTANCES
The respondent requested a waiver for special circumstances pursuant to section 1237AAD of the Act. The Tribunal considered the respondent’s statement of financial circumstances, her submission and evidence she gave to the Tribunal as well as some further matters put to the Tribunal by her advocate.
The respondent’s partner recently sold their family home for financial reasons that were unrelated to her PPP debt. The sale provided an equity return of about $50,000 some of which they have used to repay various other debts. At the date of the hearing they gave evidence that they still had $32,000.
The respondent said her partner was unable to financially support his mother in Pakistan as he had previously done, and the family was also unable to fully perform their religious and cultural obligations or to visit their families in Pakistan.
The respondent’s advocate noted that the respondent and her partner had made an innocent mistake and are now in an invidious position as a result of a significant error by the department.
The applicant said that there is a combined adjusted taxable income estimate for FTB purposes of $53,559 for 2019-2020 financial year and it is open for the respondent to test her eligibility for income support, therefore recovery of the debt by instalments would not cause severe financial hardship.
The Tribunal recognises the unfortunate situation of the respondent and her partner as a result of their error and the resulting debt. However, it notes that the respondent has had the benefit of $37,988.13 of public monies to which she was not entitled. The Tribunal did not find that either the events that led to the debt or the family’s circumstances are particularly unusual or would give rise to any injustice by asking the respondent to repay the debt. The Tribunal therefore finds that special circumstances do not exist.
As of the date of the hearing, the respondent had chosen not to seek income support from the department. Given that option is open to her it would not be appropriate to write-off the debt under section 1236 of the Act.
DECISION
The decision made by the Administrative Appeals Tribunal (Social Services and Child Support Division) on 19 February 2019 is set aside.
This means that the decision made by an authorised review officer of the Department of Human Services on 4 December 2018[50], that the respondent has a legally recoverable parenting payment (partnered) debt totalling $37,988.13 for the period 18 March 2014 until 7 May 2018 stands.
[50] T4 p14-p17.

52. I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Member D Cox.

................[sgnd].............................................
Administrative Assistant Legal
Dated: 27 May 2020

Date of hearing: 10 December 2019

Applicant:
Ms J Edwards, Department of Social Services.

Representative for the Respondent: Ms M Riley

Date of hearing:	10 December 2019
Applicant:	Ms J Edwards, Department of Social Services.
Representative for the Respondent:	Ms M Riley