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

[2022] AATA 4067

Wilson and Secretary, Department of Social Services (Social services second review) [2022] AATA 4067 (30 November 2022)

Division:GENERAL DIVISION

File Number(s):      2020/0886

Re:Lauren Wilson

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Member P Ranson

Date:30 November 2022

Place:Brisbane

The decision under review is varied, such that Ms Wilson has a recoverable debt due to the Commonwealth of $27,108.02 for the period 5 September 2013 to 19 June 2019, and the Secretary is requested to consider the health circumstances of Miss Wilson in negotiating repayment by instalments.

.................................[SGD].......................................

Member P Ranson

Catchwords

SOCIAL SECURITY — Parenting Payment Single — where applicant misreported her income — where applicant may be a member of Robodebt class action — where applicant applies for waiver of debt due to illnesses

Legislation

Income Tax Assessment Act 1997 (Cth)

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

Applicant WAEEv Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; [1979] AATA 179

Secondary Materials

Guides to Social Policy Law, Child Support Guide, Version 4.57, released 1 July 2021

REASONS FOR DECISION

Member P Ranson

INTRODUCTION

1. Miss Lauren Wilson has one child, a son, from a previous relationship. She was in receipt of Parenting Payment Single (PPS) from the 2013 to 2019. That brought with it the obligation for her to report the gross amount of her ordinary income on a regular basis.

2. Miss Wilson rightly pointed out on numerous occasions she did report her earnings whenever changes occurred and believes she did so accurately other than on a limited number of occasions. That she reported to Centrelink is not in dispute. Unfortunately for Miss Wilson, she consistently under reported her fortnightly earnings. She thought Centrelink would detect any errors in her reporting once she lodged her annual income tax return each year. For PPS purposes, there is no annual reconciliation of adjusted taxable income as occurs with some other benefits and so her under reporting was not detected for many years.

3. Given her answers at the hearing, it is possible Miss Wilson reported net earnings (after tax) rather than gross earnings (before tax). No one is suggesting the amounts she reported were deliberately incorrect and Centrelink concedes she accepted the payments in good faith. However, Centrelink’s records show she regularly underreported her earnings for PPS purposes. Why it took Centrelink seven years to discover this underreporting is both regrettable and unexplained although this case does not turn on that delay.

4. In any event, Miss Wilson has a debt due to the Commonwealth of $27,163.40, which she is currently repaying at the rate of $15 per fortnight by way of deduction from her Family Tax Benefit (FTB). Miss Wilson was adamant she was a party to the so-called Robodebt class action, which she was, however her circumstances precluded her from participating in the settlement. As Miss Wilson concedes she may have made some reporting errors, errors by Centrelink (if any) are not solely by them. She says even if she did make errors, the debt could be no more than $5,000, although she had no explanation of how she arrived at that amount, nor why she says the amount calculated by Centrelink is incorrect.

5. When a Centrelink recipient is overpaid a benefit, the amount of the overpayment is automatically a debt due to the Commonwealth. Miss Wilson claims negligence by Centrelink caused the debt because they took seven years to discover the underreporting of her earnings and have several times changed the amount of the debt. She also said many times she is a single mother who suffers from Posttraumatic Stress Disorder (PTSD) and anxiety, and for all those reasons the debt should be waived. All PPS recipients are single parents and there are circumstances where such a debt can be waived or written off however the circumstances of Miss Wilson do not warrant that.

6. The issues in this case are:

   (a)Did Miss Wilson report the correct amount of fortnightly gross income?

   (b)Was she overpaid PPS during the 2014 to 2019 financial years?

   (c)Is the Robodebt class action relevant to this case?

   (d)Are there any grounds for the debt to be waived or written off?

7. For the following reasons, the decision under review is varied, such that Ms Wilson has a recoverable debt due to the Commonwealth of $27,108.02 for the period 5 September 2013 to 19 June 2019, and the Secretary is requested to consider the health circumstances of Miss Wilson in negotiating repayment by instalments.

BACKGROUND

1. The parties in this case are:

Applicant	Miss Lauren Wilson (Miss Wilson)
Respondent	Secretary, Department of Social Services (the Secretary)

1. On 24 January 2020, the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (AAT) affirmed a decision of the then Department of Human Services, now known as Services Australia, to raise and recover a PPS debt of $31,296.10 against Miss Wilson for the period 18 October 2012 to 8 May 2019 (AAT1). Resulting from AAT1, the debt was recalculated to $28,095.88 for the period 5 September 2013 to 19 June 2019 and later still reduced to $27,163.40 for the period 19 September 2013 to 19 June 2019.[1]

   [1] Exhibit 2, ST19, Debt Multical - $27,163.40 for period 19/09/2013 — 19/06/2019.

2. The post-hearing submission from the Secretary (Exhibit 6) identified a minor adjustment of $55.38 in Miss Wilson’s favour being underpayment arrears for the fortnight of 5 September 2013 to 18 September 2013. This decision then deals with a debt of $27,108.02 ($27,163.40 less $55.38), for the debt period of 5 September 2013 to 19 June 2019 (the Debt Period), which incorporates the underpayment of $55.38 identified by the Secretary.

3. The hearing was held on 14 October 2022 and conducted by MS Teams video (the Hearing). Miss Wilson attended and gave affirmed evidence. Mr Karwan Eskerie (Mr Eskerie), Solicitor attended the Hearing by video representing the Secretary.

WHAT EVIDENCE WAS BEFORE THE TRIBUNAL?

1. Prior to the Hearing, all parties were provided with an Exhibit List showing Exhibits 1 to 4 and Exhibit 5 was added at the Hearing. A post-hearing submission received from the Respondent has been included as Exhibit 6 and was provided to Miss Wilson. The following documents were admitted into evidence:

Number	Description
Exhibit 1	T Documents (T1 to T28) in four volumes.
Exhibit 2	Supplementary T Documents (ST1 to ST24, pages 1 to 627)
Exhibit 3	Secretary’s Statement of Facts, Issues and Contentions dated 3 June 2022
Exhibit 4	Applicant’s correspondence with local MP
Exhibit 5	Bundle of e-mails received by the Tribunal from the Applicant in the days before the Hearing.
Exhibit 6	Post-hearing submission from the Respondent concerning the status of the Applicant in the Robodebt scheme class action, and the debt calculation recalibrated into financial years.

1. In the days prior to the Hearing, Miss Wilson forwarded several e-mails to the Tribunal and copied the Respondent. These e-mails are included as Exhibit 5 and were duplicates of documents already contained in Exhibits 1 and 2.

2. The Tribunal notes Miss Wilson provided no evidence or submissions in support of her case other than a series of e-mails, such as Exhibit 5, and she provided no post-hearing submissions or a reply to Exhibit 6.

3. The Tribunal contacted Miss Wilson a week before the hearing to enquire if she had copies of the documents provided by the Secretary. She replied they would be in her e-mails. She was asked to reread the Secretary’s statement of facts issues and contentions and she replied she was not a lawyer or an accountant. The Tribunal is satisfied all possible steps have been taken to ensure Miss Wilson had possession of all the exhibits and time to review and refute them or otherwise if she wished to do so and was afforded all necessary procedural fairness in this case.

4. The Tribunal has considered all the material supplied to it and the oral evidence of Miss Wilson at the Hearing. Not all the evidence is referred to at length, or at all, in this decision record. That does not mean it has not been considered in determining the outcome. It is sometimes unnecessary to canvass all aspects, arguments, and history of a case in a decision record.[2]

   [2] Applicant WAEEv Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184, [46]

THE LAW

1. Exhibit 3 sets out in detail the law which is relevant to this case with which the Tribunal concurs. As a copy of all exhibits and their attachments were provided to Miss Wilson prior to the Hearing that law will not be reproduced in detail in this decision other than to confirm the relevant legislation is contained in the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

2. Exhibit 3 also refers to the Social Security Guide (the Guide).[3] The Tribunal notes where a general policy exists to guide the decision maker in exercising its powers, the Tribunal:

   “will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision … cogent reasons will have to be shown against its application”.[4]

   [3] See Guides to Social Policy Law, Child Support Guide, Version 4.57, released 1 July 2021

   [4] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; [1979] AATA 179, 645 (Brennan J).

3. The Tribunal considers there are no pressing reasons to depart from the policy outlined in the Guide. To the extent the Tribunal has considered policy in this case, it has not applied it inflexibly and has only considered it to the extent the Guide is consistent with the requirements as set out in the legislation as it would be an error of law for the Tribunal to state it must (emphasis added) follow what policy says concerning the scope or meaning of a provision in the Act or Regulations.

4. In Exhibit 3, the Secretary points out some of the relevant provisions of the Act and Administration Act have been amended since 2019 and as such, the versions of both Acts, as they were at the relevant time, apply in this case, rather than the current versions of those Acts.[5]

   [5] Exhibit 3, Secretary’s Statement of Facts & Contentions dated June 2022, [34].

THE FACTS

Did Miss Wilson report the correct amount of her fortnightly gross income?

1. Other than Exhibit 5, Miss Wilson provided no written evidence in support of her case. As discussed above, in making this decision the Tribunal relies on exhibits 1 to 6 and the oral evidence of Miss Wilson.

2. PPS is calculated daily based on ordinary income, which includes gross income from employment, such as salary and wages.[6] Gross income is the amount before PAYG tax is deducted. It excludes maintenance income and exempt lump sums all of which are defined in the legislation. Ordinary income for PPS is neither taxable income nor adjusted taxable income as used in the calculation of other benefits and there is no annual reconciliation of earnings as occurs with other benefits.[7] The onus is on the recipient to correctly report their gross income.

   [6] Income Tax Assessment Act 1997 (Cth) s 6-5 (‘ITAA 1997’).

   [7] See, e.g. Family Tax Benefit.

3. The Act defines an instalment period as the period determined by the Secretary. Generally, social security periodic payments are paid in arrears and by instalments not exceeding 14 days.[8]

   [8] Administration Act s 43.

4. A person’s pay period with their employer may not and often don’t directly align with an instalment period for social security purposes. Where pay periods and instalment periods do not align the Act has to identify when the income is earned, derived, or received in each instalment period.

5. Once it is satisfied a person had earned, derived, or received an amount of employment income during the whole or a part of a particular instalment period, s 1073B of the Act provides the person is deemed to have earned, derived, or received an amount of employment income on each day in that instalment period, worked out by dividing the total amount of employment income by the number of days in the instalment period.

6. Exhibit 3 identifies where Miss Wilson was employed during that period as follows:

Employer	From	To
MyStyle Homes	4 September 2013	12 May 2016
Mr Rentals Cairns	16 May 2016	20 May 2016
Cairns & Cape Electrical	1 June 2016	12 July 2018
LDI Constructions Civil Pty Ltd	24 July 2018	21 December 2018
HC Building and Construction	7 January 2019	4 August 2019

1. Where a payslip does not indicate the hours worked on a given day during the pay period, and instead shows the total hours worked for the whole of the pay period, the Act deems that income to be earned, derived, or received, whichever occurs first, on each day in that instalment period by dividing the total amount by the number of days in the instalment period.[9]

   [9] Act s 1073B.

2. Where a payslip identifies the days and hours worked, the income for those days is earned or derived in the instalment period in which those days fall. Absent identification of the days worked the income is deemed received in the instalment period in which the pay date occurs. Based on the payslips provided by the Secretary who obtained them from the employers concerned, the income has been assessed as follows:

Employer	Basis applied
MyStyle Homes	Daily earnings
Mr Rental Cairns	Daily earnings
Cairns Cape Electrical (Vyner Pty Ltd)	Income received
Brooks Build	Income received
LDI Constructions	Daily earnings
HC Building and Construction	Daily earnings

1. Miss Wilson received PPS from 5 November 2011 to 18 July 2019 with some periods of suspension when her ordinary income exceeded the relevant threshold. The Secretary issued letters and statements to her throughout that period reminding her to report the name of her employer and her gross employment income. She was also reminded to advise of any changes in employment.

2. There is no dispute Miss Wilson regularly reported her earnings to Centrelink during the 2014 to 2019 financial years. The Secretary acknowledges this, for example, in Exhibit 3 at paragraph 86. Her employer payslips show the pay periods do not directly align with the instalment period for social security purposes.[10] The issue though is whether the amounts reported were the income required to be reported.

   [10] Exhibit 1, T9 and T10.

3. Exhibit 6 sets out the information on which the Debt has been calculated as follows:[11]

   [11] Exhibit 6, Respondent’s Further Submissions dated 4 November 2022, [3.2] and [3.8].

Financial year	Actual earnings	Reported earnings	Under reported earnings
2013/2014	34,846	26,440	8,406
2014/2015	47,500	30,000	17,500
2015/2016	45,413	28,291	17,122
2016/2017	48,041	36,370	11,671
2017/2018	46,852	36,328	10,524
2018/2019	55,009	45,862	9,147

1. By employer, the difference in the amounts earned, derived, and received by Miss Wilson compared with the amounts declared by her over the relevant period as shown on Exhibit 6 are as follows:

Employer	Declared	Actual	Difference
MyStyle Homes	83,814	126,195	42,381
Mr Rental Cairns	0	811	811
Brookes Build	65,324	77,222	11,898
Cairns Cape and Electrical	17,723	27,419	9,696
LDI Constructions	20,417	22,211	1,795
HC Building & Constructions	16,863	23,808	6,945
Totals	$204,141	$277,666	$73,526

1. The important point to take from the above schedule is the consistent underreporting of gross employment income in all years in question with amounts over $10,000 in all but two years. A certain outcome of this underreporting of gross income by Miss Wilson is overpayment of her PPS benefits, which results in a debt due to the Commonwealth as has occurred in this case.

2. At the hearing, and following receipt of Exhibit 6 from the Secretary, Miss Wilson was invited to make submissions in support of her case. She made no such submissions. At the hearing she conceded she may have misreported a few times and as such the debt would be no greater than $5,000 yet she could provide no basis for that estimate. She was also asked to identify errors in the Secretary’s calculation. She declined saying she was not a lawyer or an accountant.

3. The Tribunal finds Ms Wilson underreported her gross income for PPS purposes during the Debt Period because of the substantial differences between the amounts reported by her and the gross employment income recorded on employer payslips.

Was she overpaid PPS during the Debt Period?

1. At the request of the Tribunal, the Secretary recalibrated the detailed calculations of Miss Wilson’s entitlement to PPS on a financial year basis for 2014 to 2019.[12] The schedule for each financial year shows the individual employers, and the declared income and updated income for each. Updated income has been calculated from payslips provided by each employer. The Tribunal notes the declared income in FY2014, which for the purpose of this case was solely from MyStyle Homes, is $27,288 as opposed to $26,440 as shown in Exhibit 6 at paragraph 3.8. This difference is in favour of Miss Wilson and this decision does not turn on that difference.

   [12] Exhibit 6, Respondent’s Further Submissions dated 4 November 2022, annexure C.

2. The Tribunal conducted random testing of the amounts shown as ‘Updated Income’ on Attachment C to Exhibit 6. This is the amount of gross employment income derived from the various employers during the Debt Period. The purpose of the testing was to satisfy the Tribunal the calculation was correctly based on the gross income shown on the payslips to the Debt Schedule. No discrepancies were discovered in this testing.

3. Miss Wilson rightly queried the changing amount of the Debt over time and how the amount could be credible when it had changed so many times. The history of the debt amount is set out below:

Date	Amount	Period	Basis
24-07-2019	$24,897.98	05-11-2012 to 21-06-2017	Original calculation of the Debt using employment income information provided by the ATO (T8, p76).
12-08-2019	$30,432.52	05-11-2012 to 08-06-2019	Revised calculation of the Debt following receipt of some payslips from Miss Wilson (T13, p266).
04-10-2019	$31,296.10	18-10-2012 to 08-05-2019	Revised calculation incorporating bank statements provided by Miss Wilson. Later upheld by an ARO (T20, p575). This amount was the subject of the AAT1 decision on 24 January 2020.
16-04-2020	$33,368.73	18-10-2012 to 19-06-2019	Revised calculation incorporating payroll information provided by LDI Construction, HC Building and Construction and Mr Rentals Cairns (ST5, p99)
28-01-2021	$28,095.88	05-09-2013 to 19-09-2019	Revised calculation following the first review in the AAT. This calculation only relies on employment income provided by Miss Wilson’s employers and excludes earnings shown on her bank statements (ST20, p560).
09-03-2022	$27,163.40	19-09-2013 to 19-06-2019	Revised calculation based on payslip information from all six employers (ST19 & ST20) (Exhibit 3, para 62).
04-11-2022	$27,108.02	05-09-2013 to 19-06-2019	Revised calculation following recalibration of the debt schedules on a financial year basis (see Exhibit 6). Incorporates $55.38 underpayment arrears.

1. At the hearing, Mr Eskerie explained the calculation of Miss Wilson’s PPS entitlements changed over time as further and better information became available. It began incorrectly based only on gross annual income provided by the ATO, which may have been the reason Miss Wilson was originally thought to be part of the Robodebt class action. Various calculations of the debt included income shown on Miss Wilson’s bank statements, which were later disregarded. The Secretary says the final calculation made in March 2022 is based on the best information available to it being the payslips from the six businesses which employed Miss Wilson during the Debt Period showing her gross employment income and the calculation methodology contained in the Act and the Administration Act.

1. Included in Exhibit 5 is a copy of a letter dated 30 March 2021 from Townsville Community Law to Miss Wilson. In that letter under the heading of ‘Debt recalculation’ the author Ms Fiona Spencer says:

   ‘With respect to recalculating the debt, we advise we do not have the resources to do a manual recalculation of the debt on your behalf. Should you consider there is an error in calculations, you may wish to engage an accountant to recalculate the debt, or alternatively request the AAT recalculate the debt (in the event you choose to proceed). You would need to provide some evidence to the AAT that indicates the debt has not been calculated correctly.’

2. Miss Wilson was asked at the hearing if she could identify any errors in the final calculation of the debt consistent with the advice she received from Ms Spencer in her letter of 30 March 2021 as shown in the last sentence in the above quote. She repeated she was not a lawyer or an accountant and so didn’t have the skill to check the calculation herself nor could she afford to pay for it to be independently checked.

3. The debt has been calculated on an instalment period to instalment period basis, having regard to all of the payslips provided by Miss Wilson’s employers during the Debt Period. Absent any submissions by Miss Wilson identifying an error in the calculations made by the Secretary, there is no evidence before the Tribunal to indicate the final calculation of the debt, viz, $27,108.02 is incorrect.

1. How an overpayment of a social security benefit occurs is irrelevant in determining whether a debt to the Commonwealth exists pursuant to s 1223(1) of the Act. When a recipient of a social security benefit receives payments more than they are entitled to, the excess is a debt due to the Commonwealth.[13]

   [13] Act s 1223(1).

2. The Tribunal finds Ms Wilson received overpaid PPS of $27,108.02 for the period 5 September 2013 to 19 June 2019 and this amount is a debt due to the Commonwealth because she consistently underreported her gross employment income and there is no evidence before the Tribunal to indicate the amount has not been correctly calculated.[14]

Is the Robodebt class action relevant to this decision?

[14] Administration Act s 72(1).

1. Miss Wilson said Centrelink wrote to her to advise she was part of the Robodebt class action, and so she was adamant she was. In her evidence she said:

   MS WILSON:  Yes, I was part of the class action.  I forwarded you the documentation from that.

   MEMBER:  So, did you get a settlement?

   MS WILSON:  No, I haven’t had any correspondence from Centrelink in regards to it.[15]

   [15] Transcript, p 18, lines 4–10.

2. The Tribunal does not doubt she received such a letter because in Exhibit 6 the Secretary provided a copy of a letter dated 4 November 2021 sent to Miss Wilson advising the outcome of her participation in that class action, which means she had received correspondence from Centrelink despite her saying she didn’t. The letter is listed as annexure A and confirms she was a member of that class action, and she was not eligible for a settlement payment.

3. The reason given for her ineligibility for a settlement payment is stated as:

   ‘This debt used averaged Australian Taxation Office (ATO) income information. The amount repaid was less than what was owed after the debt was recalculated using verified income information.’

4. In her e-mail dated 5 March 2022 to federal MP the Hon Warren Entsch, Miss Wilson acknowledges she was not part of the Robodebt class action because she says: ‘Upon settlement of the Class Action my case was noted as not being a class action case.’[16] Again this is evidence Miss Wilson did receive correspondence from Centrelink advising her she was not part of the Robodebt settlement, despite her saying she didn’t.

   [16] E-mail exchanges between Miss Wilson and the offices of federal MPs the Hon Warren Entsch and the Hon Bob Katter forwarded to the Tribunal on 13 April 2022.

5. Miss Wilson’s involvement in the Robodebt class action is not relevant to and does not affect the matters to be decided in this case.

Are there any grounds for the debt to be written off or waived?

Write off

1. The Secretary can write off a debt, meaning delay its recovery, for a stated period in certain circumstances.[17] Those circumstances include:

   (a)The debt is not recoverable at law

   (b)The debtor has no capacity to repay the debt

   (c)The debtor’s whereabouts are unknown, or

   (d)It is not cost effective for the Commonwealth to recover the debt.

   [17] Act s 1236(1A).

2. There is no suggestion the debt cannot be recovered from future entitlements of Ms Wilson to other social security benefits, as occurs now with deductions from her Family Tax Benefit (FTB),[18] or future income tax refunds. Ms Wilson’s whereabouts are known, and it can be cost effective for the Commonwealth to recover the debt by instalments.

[18] Exhibit 3, Secretary’s Statement of Facts & Contentions dated June 2022, [32].

1. The Secretary asserts Miss Wilson had estimated taxable income of $90,000 for FY2022 and adjusted taxable income of $60,734 for FY2021.[19] Miss Wilson has not challenged this. Severe financial hardship can be considered in deciding whether to recover a debt. However, Miss Wilson is employed, and the Secretary is currently accepting repayment by modest instalments from her entitlement to FTB, which indicates repayment will not cause her severe financial hardship.

   [19] Exhibit 3 Secretary’s Statement of Facts & Contentions dated June 2022, [73].

2. Given the findings above, the Tribunal is satisfied there are no grounds to write off the debt for any period because it is recoverable, and Miss Wilson can negotiate repayment by instalments.

Waiver

1. Ms Wilson asserts she should not have to repay the debt because she is a single mother and suffers from PTSD. This would require the debt waiver provisions of the Act apply. For the purposes of this decision, there are two circumstances where waiver might apply.

2. Firstly, the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt. This Subsection does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).[20] Solely means the error must have been caused only by the Commonwealth and by no other party.

   [20] Act s 1237(A).

3. Secondly, the Secretary may also waive the right to recover all or part of a debt if the Secretary is satisfied the debt did not result wholly or partly from the debtor or another person knowingly making a false statement or a false representation or failing or omitting to comply with a provision of the Act, the Administration Act or the 1947 Act. There must be special circumstances (other than financial hardship alone) that make it desirable to waive the debt, and it is more appropriate to waive than to write off the debt or part of the debt.[21]

   [21] Act s 1237AAD.

4. As already discussed, the main issue in this case is the error by Miss Wilson in the amounts of gross income she reported over a seven-year period. She may have been reporting net income rather than gross income as the following exchange at the hearing demonstrates:

   MEMBER:  Okay.  Let me ask another one [question] that will seem very silly to you but let me ask it anyway.  What is the difference between gross and net pay?

   MS WILSON:  So, over the years, the more administration work I have done, I have gone into learning about bookkeeping and contract administration, et cetera, et cetera.  So gross earnings is – my understanding – what you take home.

   MEMBER:  Well, if that is so, what is net pay?

   MS WILSON:  Net pay is the total amount what you receive.  Before tax. 

   MEMBER:  Okay.  All right.  Let me suggest to you that it’s actually the other way around.  Gross pay is before tax.  Net pay is after tax. 

   MS WILSON:  Well, there you go.

   MEMBER:  So, given that confusion – and easily done – is it conceivable in your mind that when you were reporting some of your earnings, you may have incorrectly reported your net pay being after tax rather than your gross pay being before tax?

   MS WILSON:  Well yes, it could have been that.[22]

   [22] Transcript, p 40, lines 9–31.

5. Exhibit 3 shows Centrelink wrote to Miss Wilson on many occasions specifying she was to report her gross income. Nonetheless, the Secretary accepts Miss Wilson accepted the PPS payments she received in good faith.[23]

   [23] Exhibit 3, Secretary’s Statement of Facts & Contentions dated June 2022, [78].

6. To make a finding of sole administrative error by Centrelink in this case is precluded because the overpayments arose from the underreporting of her income by Miss Wilson, which she partially acknowledges, and not by any error by Centrelink. The following quote from the hearing demonstrates this:

   MS WILSON:  I already stated before there is the possibility on the times when I have had, like, holidays and you have to report early and things like that, that that could be where I have made discrepancies in what I’ve reported.  But I certainly don’t believe I owe $27,000.[24]

   [24] Transcript, p 41, lines 5–8.

7. Miss Wilson says the seven-year delay in discovering the overpayments coupled with the many different calculations of the debt means the error was all by Centrelink. The Tribunal has already explained above why the calculation of the debt changed many times as further and better information was provided. Whilst a seven-year delay in discovering the errors in reporting by Miss Wilson may suggest poor administration by Centrelink and is regrettable, it is not an error by Centrelink. The only error was by Miss Wilson in consistently underreporting her gross income from employment.

8. Given the findings above, the Tribunal is satisfied there has been no administrative error by the Commonwealth and the errors which gave rise to the debt are solely those of Miss Wilson because at the Hearing she admitted she misreported her income on some occasions and every year in question her reported gross income was significantly less than her actual gross income so as to preclude inadvertence on her part.

9. The Secretary accepts Miss Wilson did not knowingly fail or omit to comply with her notification obligations because she was regularly reporting her earnings, albeit incorrectly.[25] That leaves special circumstances as a possible ground for the debt to be waived. To be special, the circumstances of Miss Wilson must be unusual, uncommon, or exceptional. She says her diagnosed PTSD and anxiety plus being a single mother amount to special circumstances.

   [25] Exhibit 3, Secretary’s Statement of Facts & Contentions dated June 2022, [86].

10. Miss Wilson provided a medical certificate dated 12 January 2020 from Dr Susan Fernandes which states:[26]

    ‘Miss Lauren Wilson has PTSD [Post-traumatic stress disorder] and Anxiety. This certificate has been issued at the consent of the patient.’

    [26] Exhibit 2, ST23, Medical certificate dated 12 January 2020, 567.

11. The Tribunal and the Secretary accept Miss Wilson has been diagnosed with PTSD and anxiety, which is very unfortunate, and no doubt would be considered by the Secretary in negotiating repayment of the debt by instalments.

12. The state of her health was commented on further by Dr Rohit Goel on 9 October 2022 who provided a medical certificate which states:

    Miss Lauren Wilson has been a patient of mine since 2018 and states that she has been under considerable stress due to her ongoing issues with Centrelink and issues around repayment. She was referred to a psychologist by myself and a colleague in 2018.[27]

    [27] Exhibit 5.

13. Whilst this certificate is current at the time of this decision, it mentions a referral to a psychologist in 2018. As the debt arose during the period 5 September 2013 to 19 June 2019, most of the debt arose in period before the diagnosis of PTSD. Further, the letter from Dr Goel advises self-reporting by Miss Wilson of her stress rather than a diagnosis of her condition by a suitably qualified medical practitioner, such as a psychiatrist or clinical psychologist. In her evidence at the hearing, Miss Wilson confirms the diagnosis of her PTSD was in 2018:

    MEMBER:  Well, let’s pick up on those points.  You’ve said there’s no consideration of your mental health issues.  When were you first diagnosed with PTSD?

    MS WILSON:  In 2018.[28]

    [28] Transcript, p 38, lines 43–47.

14. Many people suffer from PTSD and anxiety and continue to function in society as does Miss Wilson, who has regular employment, lives independently and cares for her son as a sole parent. These medical conditions do not in and of themselves amount to special circumstances for the purpose of debt waiver.

15. Given the findings above, the Tribunal is satisfied there are no special circumstances in this case which would warrant waiver of the debt.

CONCLUSION

1. Regrettably, Miss Wilson failed to engage in any serious way in these proceedings rather continuously protesting the apparent injustice of the debt.

2. The Tribunal contacted her ahead of the hearing to ensure she had the relevant documents and at least had read Exhibit 3. She agreed she had the documents and wouldn’t read them because she was not a lawyer or accountant.

3. She asserted more than once in the hearing she was part of the Robodebt class action, which the Secretary confirmed in Exhibit 6 she had been and was advised a year ago she was not entitled to a settlement. Miss Wilson knew at the hearing she would not be receiving a settlement payment from the Robodebt class action. In any event, her involvement in the Robodebt class action is not relevant to this case.

4. Townsville Community Law advised her in March 2021 she would need to provide some evidence to the Tribunal to indicate the debt has not been calculated correctly. She didn’t do so reverting instead to her stated position of not being a lawyer or accountant as though that somehow precluded her from making any such submission.

5. Her only rationale for the debt being waived is she is a single mother who suffers from PTSD and anxiety. Those medical conditions, which the Secretary and the Tribunal accept are real, have not stopped her from obtaining well paid employment including most recently, living independently, and caring for her son as a single parent.

6. As this decision has clearly shown, Miss Wilson did not accurately report her employment income and she was overpaid PPS as a result.

DECISION

1. The decision under review is varied, such that Ms Wilson has a recoverable debt due to the Commonwealth of $27,108.02 for the period 5 September 2013 to 19 June 2019, and the Secretary is requested to consider the health circumstances of Miss Wilson in negotiating repayment by instalments.

I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Member P Ranson

.................................[SGD].......................................

Associate

Dated: 30 November 2022

Date(s) of hearing:	14 October 2022
Date final submissions received:	4 November 2022
Applicant:	In person
Advocate for the Respondent:	Mr K Eskerie, Solicitor
Solicitors for the Respondent:	Sparke Helmore