Woolley; Secretary, Department of Family and Community Services - [2000] AATA 258

DECISION AND REASONS FOR DECISION [2000] AATA 258

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/892

GENERAL ADMINISTRATIVE DIVISION )

Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Applicant

And RUTA WOOLLEY
Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date4 April 2000
PlaceSydney

Decision 1. The decision under review is varied in that waiver of the debt is to occur by nominating the period of waiver as being from 18 July 1996 up to 18 December 1997 or a date some 14 days after receipt of tax assessments by the Respondent for her and her partner for financial year 1996/97, whichever is the earliest; and

2. The remainder of the decision under review is affirmed.

(Sgd J D Campbell)
..............................................

Member
CATCHWORDS
SOCIAL SECURITY – Family Payments – overpayment – base year –estimates – request to use estimates – failure to request – Departmental use of estimate – notifiable event – administrative error – receipt in good faith.

Social Security Act 1991 - ss885, 891, 1069H, 1223, 1237A, 1237AAD
Social Security Policy and Legislative Guide – Chapters 17.7840 to 17.7845

Re Secretary, Department of Social Security and Jones (1998) 50 ALD 248
Re Secretary, Department of Family and Community Services and Delia [1999] AATA 799
Re Stuart and Secretary, Department of Social Security (1998) 54 ALD 241
Re Secretary, Department of Social Security and Blackberry (1998) 53 ALD 112
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Beadle v Director-General of Social Security (1985) 7 ALD 670
Secretary, Department of Social Security v Hales (1998) 82 FCR 154

REASONS FOR DECISION

Dr J D Campbell, Member

The Secretary, Department of Family and Community Services ("the Applicant") in this matter seeks a review of the decision of the Social Security Appeals Tribunal dated 13 May 1999, which set aside a decision, dated 19 February 1999, of an Authorised Review Officer ("ARO") from Centrelink. The decision of the ARO had affirmed an earlier decision of a delegate of the Applicant dated 1 February 1999 that Mrs Woolley ("the Respondent") had been overpaid Family Payment and that, as a consequence, a debt of $4,848.90 had accrued, which the Respondent had to repay.
A hearing was held before the Tribunal in Newcastle on 12 December 1999. The Applicant was represented by Ms Collis, an advocate from the Administrative Law Section of Centrelink, and the Respondent was represented by Ms Koller, an advocate from the Welfare Rights Centre. The Respondent presented some oral evidence to the Tribunal.
The Tribunal had placed in evidence before it the following written material:
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 Applicant's Amended Statement of Facts and Contentions dated 8 December 1999 Respondent's submissions dated 10 December 1999 T1 – T24 Exhibit A1 Exhibit R1

ISSUES

The relevant issues in this matter are:
(a)whether the Respondent owes a debt of $4,848.90, arising from an overpayment of Family Payment, for the period 18 July 1996 to 18 December 1997; and
(b)whether, if such overpayment exists, grounds exist for the overpayment to be waived in part or in whole.

LEGISLATION

The relevant legislation in this matter is the Social Security Act 1991 ("the Act"), in particular sections 885, 891, 1069H, 1223, 1237A and 1237AAD.
BACKGROUND
The Respondent and her partner have a landscaping business and hence became self-employed in May 1995. The Respondent has for a period in the past undertaken some merchandising work, and has and still undertakes casual teaching work.
In December 1995, the Respondent completed a new claim for Family Payment (T3) in which the combined taxable income for the financial year 1992/93 was nominated at $41,490.00 (T3, p18) and the combined actual income for the financial year 1994/95 was estimated at $52,000.00 (T3, p19). At all times in contention, the Respondent had four children for which she was entitled to seek Family Payment and for one of whom she was entitled to seek Child Disability Allowance.
In the financial year 1994/95 the Respondent had a nil taxable income and her partner had a taxable income of $42,242.00 (T4).
On 7 March 1996, the Applicant received a completed Family Payment and Childcare Assistance Answer Form (T5), in which the Respondent nominated the actual combined taxable income for the financial year 1994/95 as $42,242.00, and estimated a combined taxable income for the financial year 1995/96 of $41,500.00. In addition the Respondent nominated under "Changed circumstances", that she and her partner were self-employed since 1 May 1995 and that she had commenced casual merchandising on 16 February 1996.
At some time in the latter part of the financial year 1995/96, the Respondent spoke with Centrelink concerning Childcare Assistance for her disabled son and, following a further discussion of Family Payment, the Respondent felt that she may be entitled to a higher payment.
On 13 June 1996 the Applicant wrote to the Respondent (T6) and stated that:
"…
Because your circumstances have changed in the last 12 months, we need an estimate of your combined taxable income for the 1996/1997 financial year.
…
… If you do not return these forms within 14 days after this notice is given your payment may be cancelled.
…"

As the forms were late (ie beyond 14 days) in being returned, payment was cancelled on 5 July 1996 (T23, p85). The Respondent returned the completed forms on 18 July 1996 (T6), in which she estimated the combined family income for financial year 1996/97 to be $26,550.00 (T6).
The Applicant, on receipt of the returned forms, recommenced payment of Family Payment and Childcare Assistance from 5 July 1996, basing payments on the estimate of $26,550.00 as this was lower than the actual combined taxable income for the base year (1994/95) of $42,242.00 (T23, p86).
In advice to the Respondent on 23 July 1995 (T7), the Applicant stated that:
"…
The income used to work out your rate of Family Payment is your and your partner's combined income of $26,550.00.
The income used to work out your rate of Childcare Assistance is your and your partner's combined income of $42,242.00." (being the actual taxable combined income for base year 1994/95.)

Further, the Respondent was instructed to inform the Applicant within 14 days if the combined income for the financial years 1995/96 and 1996/97 was to be more than $29,205.00 in either year. The Respondent considered that the payments then received were appropriate.

On 1 November 1996, the Applicant received a completed "Review of your Family Payment and Childcare Assistance" form in which the Respondent estimated the combined taxable income for the family for the financial year 1996/97 to be $30,000.00 (T8). As a result, the Applicant used this estimate in calculating Family Payments commencing 21 November 1996 (T9) and 2 January 1997 (T10) and advised the Respondent accordingly.
The combined taxable income for the Respondent and her partner for the financial year 1995/96 was $24,404.00. The combined taxable income for the Respondent and her partner for financial year 1996/97 was $35,818.00 (T12).
As the combined income for financial year 1996/97 was more than 110 percent of the estimate given, the Applicant concluded that an amount of Family Payment of $4,840.90 had been overpaid to the Respondent and that this was a debt due and owing by the Respondent, the Respondent being so informed.
EVIDENCE – MRS WOOLLEY
In evidence before the Tribunal, the Respondent made the following points:
(a)the process of how and what entitlements are due is to her a very confusing activity. In so stating, the Respondent reflected upon the following facts:
(i)the activities in which she is involved, namely part-time work as a casual teacher for two days a week; and
(ii)the activities associated with the care of a moderately disabled seven year old, as well as the normal care for a family, involving three other children aged eleven, ten and five; and
(iii)the revenue flow into the household is unpredictable as evidenced by combined income for financial year 1997/98 of $22,244.00; and
(iv)the expenditure flow involves rent on a house of $600.00 per month, mortgage expenditure on 40 acres of land at Karuah, as well as the normal household expenditure for the family including a 1981 Nissan utility; and
(v)at no stage in the matter under contention was she made aware or given to understand that she had a choice as to whether or not she wished to be assessed for Family Payment against an estimate for combined earnings for the financial year 1995/96, as opposed to continuing a process of assessment against the actual combined income for the base year, ie financial year 1994/95. Further, while there was a conversation with Centrelink about the quantum of her Family Payment in the latter part of the financial year 1995/96 and, in late July 1996 she considered when advised of her fortnightly entitlements by the Applicant that they seemed appropriate, at no stage during this period was she made aware of the advantages and disadvantages of assessment against estimates of income as against actual income for a base year; and
(vi)the Respondent herself has difficulty in monitoring the income stream coming into the family, and hence has difficulty in ascertaining when the income for financial year 1996/97 had exceeded $33,000.00; and
(vii)the Applicant had withheld $129.00 per fortnight of Family Payment, once the decision of an overpayment had been made. She found that this quantity of money being withheld caused difficulty for her in that she was unable to buy clothes and other necessities for the family.

SUBMISSIONS

The Applicant contends that the process that occurred in working through the Family Payments to the Respondent was correct and that the use of an estimate for assessment under subsection 1069-H21 was a proper and appropriate procedure since the estimate was not more than 110 percent of the base year income (financial year 1994/95 $42,242.00). Further the Applicant contends that when a claimant nominates an estimate of their income in a form returned to Centrelink, the Department has always considered this a request to use the estimate in assessment of Family Payments.
Accordingly, it is the Applicant's contention that in this matter:
(a)there was not an administrative error; and
(b)Family Payment was not received in good faith by the Respondent.

In relation to the issue of administrative error, the Applicant contended that the notification of a reduced income, albeit by way of an estimate by the Respondent for financial year 1995/96, allowed or entitled the Applicant to treat this as a request under subsection 1069-H21. The Applicant, in supporting the position contended, relies upon:

(i)Social Security Policy and Legislation Guide, Chapters 17.7840 to 17.7845 (Exhibit A1, Attachment A); and
(ii)the decision in Re Secretary, Department of Social Security and Jones (1998) 50 ALD 248 where the presiding member states:
"…if the department failed to treat the application as an application to change the appropriate tax year in an appropriate situation, potential beneficiaries could miss out on their entitlements…"

(iii)the decision in Re Secretary, Department of Family and Community Services and Delia [1999] AATA 799 where the Deputy President comments on subsection 1069-H21:
"…
26. The Tribunal would indicate that although, at the end of the day, the issue of whether or not there was a request by Mrs Delia for the purposes of s1069-H21 is not determinative of the issues before the Tribunal…
27.… whether or not it would be described as a request is immaterial, given the Tribunal's view as to the Secretary's very broad powers to obtain and utilise information for the purposes of ensuring that persons are, on the material available to the Secretary at the relevant time, being paid their correct entitlements in accordance with the Act…

…"

Further the Applicant contended that the application of subsection 1069-H18 from 1 January 1997 was not an administrative error, for the Applicant was responding to notification of increased income, albeit by way of an increase in the estimate to $30,000.00 for combined income for financial year 1996/97.
In considering whether the debt should be waived, the Applicant contends that the Respondent does not meet the requirements of subsection 1237A as the Respondent had a part to play in the debt creation in that an incorrect estimate was given or, alternatively, a failure to advise when actual income exceeded the notified limits. Further, the Applicant contends that the Applicant was "on notice" when warned of the consequences of an incorrect estimate and the obligations to notify Centrelink if the income went above certain notified limits.
In considering whether the debt should be waived because of the existence of special circumstances, pursuant to section 1237AAD of the Act, the Applicant contends that this matter is but another "incorrect estimate", where possible consequences of such an estimating process are disregarded – that is, there is nothing 'unusual, uncommon or exceptional' in this matter which would permit a discretion to be exercised in accordance with the leading case on special circumstances, Re Beadle and Director-General of Social Security (1985) 7 ALD 670.
RESPONDENT
It was submitted on behalf of the Respondent that for the calendar year 1996, the base tax year for Family Payment purposes was financial year 1994/95, in which the combined taxable income was $42,242.00. Further, the Respondent contends that as the combined taxable income for financial years 1995/96 and 1996/97 were $24,404.00 and $35,818.00 respectively, neither of these incomes exceeded the base tax year (1994/95) by 110 percent and therefore neither an assumed notifiable nor a notifiable event occurred so as to alter the base tax year.
The Respondent argues that section 1069-H20 can only operate where a person has requested a determination to be made under subsection 1069-H21(c), having rendered an estimate under subsection 1069-H21(b). It was the Respondent's contention that no such request for a determination using the particular estimates given had ever been made by the Respondent, and that further she had never been advised of the advantages or disadvantages of using an estimate as per chapter 17.7844, Social Security Policy and Legislation Guide. In essence, it is the Respondent's contention that this constituted an administrative error, that is the use of an estimate in the absence of any request from the Respondent in writing. In support of this contention, the Respondent relies upon decisions taken in Re Stuart and Secretary, Department of Social Security (1998) 54 ALD 241 and Re Secretary, Department of Social Security and Blackberry (1998) 53 ALD 112.
In relation to calendar year 1997, the Respondent contends that any adjustment in payment made in November 1996 as a result of a further estimate of $30,000.000 being used was in error, as the combined family income had still not increased by 110 per cent of the base year. Further, in January 1997 a new base year should have come into effect but it would appear to the Respondent an estimate was again used, and this perpetuated the error.
Further, it was the Respondent's submission that the Respondent could only notify that the combined income was above $33,000.00 when she became aware of the fact and, by virtue of the relative excess, this would only have occurred when completing the 1996/97 tax return. It is the Respondent's submission that at all times she believed herself entitled to the payments and thus received them in good faith.
Finally, the Respondent submitted that the degree of administrative error involved may well constitute a special circumstance in this matter.
CONSIDERATION AND FINDINGS
The Tribunal notes that the two parties agree on the quantum of debt raised and owed, less any amount that has been repaid by the Respondent as a result of money being withheld by the Applicant in the circumstance that an overpayment has occurred.
Further, the Tribunal makes the following findings of fact:
(a)combined taxable income for the following financial years are:
1992/93  $41,490.00
1994/95  $42,242.00
1995/96  $24,404.00
1996/97  $35,818.00; and
(b)estimates were nominated in completed forms for combined income for the following financial years:
1994/95  $52,000.00
1995/96  $41,500.00 (T5)
1996/97  $26,550.00 (18 July 1996)
1996/97  $30,000.00 (1 November 1996); and
(c)the estimate given by the Respondent on 18 July 1996 was in response to a letter from the Applicant , stating that because the Respondent's circumstances had changed, she was to provide an estimate of combined income for the financial year 1996/97, and failure to do so within 14 days may result in the cancellation of payments; and
(d)the Applicant, as a result of receiving the financial estimate on 18 July 1996 for financial year 1996/97 did change the method of calculation of Family Payment from base year (financial year 1994/95) to current financial year (1996/97) with effect from 18 July 1996; and
(e)the Respondent did provide a further estimate of combined income of $30,000.00 on 1 November 1996 and the Applicant used these estimates in calculating Family Payment from 21 November 1996 until the end of the calendar year and again for the period 1 January 1997 until 18 December 1997; and
(f)the Applicant did provide the Respondent with advice as to when to notify the Applicant when certain notifiable events arose, for example when income rose to particular levels, those levels being 10 percent above the nominated estimate; and
(g)there is no evidence that the Respondent did notify the Applicant that combined income for financial year 1996/97 was $35,818.00. The matter surfaced as a result of a data matching program review.
The Tribunal notes the following legislation which is relevant to further consideration of this matter:
"860 Rate struck for calendar year
If the rate of the family payment payable to a person in a calendar year has been worked out in accordance with the Family Payment Rate Calculator in section 1069, the rate of family payment payable to the person only has to be worked out again during that calendar year if:
(a)the person notifies the Department or an officer that a notifiable event has occurred in relation to the person; or
(b)a notifiable event has occurred in relation to the person and the person fails to notify the Department that it has occurred; or
(c)the Secretary makes a determination in relation to the person under point 1069-H21 in Module H of the Family Payment Rate Calculator in section 1069; or
(ca)family payment advance is or is not payable for a particular period; or
(d)the person revises an estimate of his or her income; or
(e)the person has underestimated his or her income; or
(f)the Commissioner of Taxation changes an assessment of the person's taxable income.
861 How to work out a person's family payment rate
The rate of family payment payable to a person or to an approved care organisation for an FA child is worked out using the Family Payment Rate Calculator at the end of section 1069.
872Secretary may require notice of the happening of an event or a change in circumstances
872(1) The Secretary may give a recipient of family payment a notice that requires the recipient to inform the Department if:
(a)a specified event or change of circumstances occurs; or
(b)the recipient becomes aware that a specified event or change of circumstances is likely to occur.
872(2) An event or change of circumstances is not to be specified in a notice under subsection (1) unless the occurrence of the event or change of circumstances might affect the payment of the family payment.
…"
"Current tax year to be retained for consecutive calendar years in certain circumstances
1069-H15If:
(a)   family payment is payable to a person:
(i) on the last family payment payday in one calendar year; and
(ii)on the first family payment payday in the next calendar year; and
(b)   the person's family payment rate on the last family payment payday in the earlier of the 2 calendar years is worked out on the basis that the person's appropriate tax year is the tax year in which that payday occurs (the current tax year); and
(c)   the person's family payment rate on that payday was worked out on that basis because the person had made a request under point 1069-H21; and
(d)   the person's income for the current tax year is less than the person's income for the base tax year;
the person's appropriate tax year, as from the beginning of the later calendar year, is the current tax year and not the base tax year unless the income for the base tax year is less than the person's income free area.
…
Change to appropriate tax year at recipient's request
1069-H20If:
(a)   a person requests the Secretary to make a determination under point 1069-H21; and
(b)   as a result, the Secretary determines under that point that the appropriate tax year, for the purpose of applying this Module to the person for a family payment payday on or after the day on which the request is made, is the tax year in which the person makes the request;
the appropriate tax year, for that purpose, is the tax year in which the person makes the request.
Family payment recipient may ask Secretary to change appropriate tax year
1069-H21If:
(a)family payment:
(i)is not payable to a person because of this Module; or
(ii)is payable at a reduced rate because of this Module; and
(b) the person gives the Secretary an estimate of the person's income for a tax year; and
(c)   the person requests the Secretary to make a determination under this point; and
(d)   the person agrees that the person's rate of family payment for that tax year is to be recalculated if the person's actual income for that tax year exceeds 110% of the amount estimated by the person;
the Secretary must determine that the appropriate tax year, for the purpose of applying this Module to the person for a family payment payday on or after the day on which the request is made, is the tax year in which the request is made.
…
1069-H22   A request under point 1069-H21 must be made in writing in accordance with a form approved by the Secretary."

The Tribunal, having earlier documented particular findings of fact, further states that the circumstances in which the Respondent provided an estimate, amounted to a demand for an estimate by the Applicant, with threat of penalty if such a demand was not met within 14 days. It is the Tribunal's finding that the language used by the Applicant in their demand for information on 13 June 1996 (T6) and the Respondent's provision of an estimate by way of completion of an estimate statement and an associated form can in no way be construed as a request by the Respondent for the Secretary to make a determination under section 1069-H21(c). In so finding the Tribunal, is mindful of the fact that the content of earlier verbal communications between the parties may not necessarily be expressed in subsequent written correspondence. The Tribunal reflects that a more appropriate form of written expression may have allowed the Tribunal to conclude, that where an estimate has been given because of changed circumstances, and where a beneficiary has already been made aware of the advantages and disadvantages of using the estimate process, a subsequent request in writing to the Secretary that a determination be made under section 1069-H21 would be consistent with what is required by section 1069-H21 of the Act.
The Tribunal is clearly of the view, and so finds, that the actions taken by the Applicant in this matter are not in conformity with the Act in that clearly the requirements nominated by section 1069-H21 and H22 of the Act have not been met. A request has not been made in writing by the Respondent to the Secretary that an estimate for the current financial year be used for calculation of Family Payment. The Tribunal further finds that on the findings of fact, no assumed or actual notifiable event occurred during the period in question. The combined income for the base year (financial year 1994/95) was $42,242 and subsequent figures, including actual combined income for financial year 1996/97 of $35,818.00, were never 110 percent more than the base year and accordingly, in the Tribunal's opinion, there was no requirement to move from calculations using the base year (1994/95), unless a "proper request" for a new determination had been made by a benefit recipient to use an estimate provided.
Further the Tribunal also notes that the Respondent does not appear to have been provided with or advised of the dangers in the use of estimates in certain circumstances as per the Social Security Policy and Legislative Guide, chapters 17.7840 to 17.7845, particularly 17.7844.
In arriving at its finding that the requirements of section 1069-H21 of the Act have not been met, the Tribunal noted with approval the decisions in Re Stuart and Secretary, Department of Social Security (supra) and Re Secretary, Department of Social Security and Blackberry (supra). Further, the Tribunal considered that in the absence of a specially designed form it is difficult for the Tribunal to state that the appropriate benefits being given to a recipient are a consequence of sound administrative action, appropriate advice and sound written communications as opposed to a Tribunal attempting to reconstruct events with the benefit and difficulties of hindsight. Further the Tribunal notes the specific statutory processes nominated by the Act to deal with the use of estimates, and concludes that any broad power that the Secretary may have to obtain and utilise information can only be done where the prescribed statutory processes have been utilised and followed. With these comments, the Tribunal distinguishes the cases of Re Secretary, Department of Social Security and Jones (supra) and Re Secretary, Department of Family and Community Services and Delia (supra).
By virtue of its findings that a request by the Respondent to use an estimate in a further determination was not made to the Secretary in accordance with section 1069-H21, there has been an administrative error made and this error has been solely made by the Applicant, for the Respondent, apart from providing an estimate on request by the Applicant, played no part in the error (the error being the use of an estimate without proper authority from the Respondent).
In further consideration of this matter, the Tribunal notes that the two parties do agree on the quantum of the debt, and that this debt had been properly calculated by virtue of the use of estimates to calculate Family Payment and the failure of the Respondent to notify the Applicant when the combined taxable income for financial year 1996/97 exceeded $33,000.00. The Tribunal notes the combined annual income for the financial year 1996/97 of $35,818.00, and notes that this exceeds by 10 percent the estimate given of $33,000.00. The Tribunal further notes the relevant legislation:
"885 Recalculation if income exceeds 110% of estimated amount
885(1) If:
(a)in working out the rate of family allowance payable to a person, regard is had to the person's income for a tax year; and
(b)the income to which regard was had consisted of an amount estimated by the person; and
(c)the person's income for that tax year is more than 110% of the amount of the income on which the determination of the rate of family payment was based;
the person's rate of family payment is to be recalculated on the basis of that income.
…
886 Recalculation if failure to notify notifiable event
If:
(a)a notifiable event occurs in relation to a person; and
(b)the person fails to notify the notifiable event in accordance with section 872 ; and
(d)the person's income for that year exceeds 110% of:
(i)the person's income for the tax year that is, when the event occurs, the person's base tax year; and
(ii)the person's income free area at that time;
the person's family payment rate is to be recalculated on the basis that the person's appropriate tax year is the tax year in which the notifiable event occurred."

The Tribunal, in earlier findings of fact, established that the Applicant had advised the Respondent to notify when income levels for the financial year 1996/97 exceeded the estimate by 110 percent, and that the Respondent failed to notify the Applicant when the amount of $33,000.00 was exceeded. The Tribunal notes that the Respondent had difficulty in establishing when the level of income was exceeded. It is the Tribunal's finding that the Respondent would have been aware of the combined annual income for 1996/97 at the time that notices of assessment were received from the Commissioner of Taxation for her and her husband for financial year 1996/97, and that once they were received, it was her duty to notify the Applicant within 14 days.
As a result of this further consideration, the Tribunal finds that there was an obligation to notify and that this should have been undertaken by the Respondent within 14 days of receipt of tax assessments for her and her husband for financial year 1996/97. Further, as a result of a failure to do so, recalculation was effected pursuant to section 886 of the Act and an overpayment was found to exist. This overpayment constituted a debt owed and payable by the Respondent for the period 18 July 1996 to 18 December 1997, and the Tribunal so finds.
In considering this matter further, the Tribunal notes the following relevant legislation:
"1237AAD Waiver of debt arising from error
1237A(1) Administrative error. Subject to subsection (1A), 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.
1237A(1A) [Time limits] Subsection (1) only applies if:
(a)the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or
(b)if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;
whichever is the later.
…
1237AAD   Waiver in special circumstances
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 this Act or the 1947 Act; and
(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c)it is more appropriate to waive than to write off the debt or part of the debt.
…"

In considering administrative error under section 1237A(1) of the Act, the Tribunal, having already found that an administrative error has occurred, that this error occurred as a result of actions taken by the Applicant, and that the Respondent had no part to play in the administrative error, finds that the payments made by the Applicant to the Respondent were received in good faith until a date some 14 days after the Respondent was made aware by way of the receipt of notices of assessment from the Commissioner of Taxation that the combined taxable income for financial year 1996/97 was $35,818. The Tribunal further finds that there was no evidence placed before the Tribunal to suggest an absence of good faith on the part of the Respondent up to that date of receipt of assessment notices.
The Tribunal notes that the requirements of subsection 1237A(1A) are met and that there was no argument to the contrary. As a consequence, the Tribunal concludes that the debt raised and owing by the Respondent should be waived for the period 18 July 1996 until 18 December 1997, or a day some 14 days after which the Respondent was made aware of the combined annual income for financial year 1996/97 upon receipt of Assessment Notices for her and her husband from the Commissioner of Taxation, whichever is the earlier.
The Tribunal was also requested to consider waiver under special circumstances nominated in section 1237AAD. In considering special circumstances, the Tribunal's attention was directed to statements from the following cases. The Applicant's amended statement of facts and contentions states:
"As French J said in SDSS v Hales (1998).
'From time to time in the administration of social security benefits overpayments occur. Sometimes these are the result of innocent non-compliance with the requirements of the law which can be affected by the stress associated with the circumstances that led to the receipt of benefits in the first place. 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.'
Although the decision maker has the discretion to decide whether 'special circumstances' apply, the comments in Re Green (1990) are particularly relevant.
The decision-maker must have regard to whether, by exercising the discretion in a particular case he/she will be 'achieving or frustrating ends or objects which are conformable with the scope and purpose of the Social Security Act
In the leading case on 'special circumstances', in Re Beadle and Director-General of Social Security (1984), the Tribunal (Toohey J presiding) had this to say:
An expression such as 'special circumstances' is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend on the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.
The Full Federal Court in Beadle v Director-General of Social Security (1985) broadly embraced the comments made by Toohey J
'The phrase 'special circumstances' although lacking precision, is sufficiently understood in our view not to require judicial gloss.'
…"

In noting the Respondent's submission that consideration of special circumstances arose from the nature and magnitude of administrative error by the Applicant, the Tribunal concludes that the notice of the administrative error does not satisfy the consequences or quality of unusualness, as outlined in the cases referred to above. Further the Tribunal notes that while the Applicant does have a disabled child, this, in the Tribunal's vie, does not constitute a special circumstance, either alone or in combination with other considered circumstances.
DETERMINATION
The Tribunal makes the following determination:
(1)The decision under review is varied in that waiver of the debt is to occur by nominating the period of waiver as being from 18 July 1996 up to 18 December 1997, or a date some 14 days after receipt of tax assessments by the Respondent for her and her partner for financial year 1996/97, whichever is the earliest; and
(2)the remainder of the decision under review is affirmed.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of:
Dr J D Campbell, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  13 December 1999
Date of Decision  4 April 2000
Solicitor for Applicant               Ms S Collis, Centrelink
Solicitor for the Respondent    Ms S Koller, Welfare Rights Centre