XSKH and Secretary, Department of Social Services (Social security second review) - [2025] ARTA 1005

XSKH and Secretary, Department of Social Services (Social security second review) [2025] ARTA 1005 (25 June 2025)
Applicant/s:  XSKH
Respondent:  Secretary, Department of Social Services
Tribunal Number:                2022/6888 and 2022/6889

Tribunal:Senior Member J Longo (second review)
Place:Melbourne
Date:25 June 2025

Decision:The Tribunal affirms the decision under review.

Statement made on 25 June 2025 at 2:15pm
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A) - 201(1B) of the Social Security (Administration) Act 1999
Catchwords
Social security – carer allowance – carer payment – whether constant care – overpayment – whether debt – recovery of debts
Legislation
Administrative Review Tribunal Act 2024
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Social Security Act 1991
Social Security (Administration) Act 1999
Cases
Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25
Confidential v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 582
Dranichnikov v Centrelink [2003] FCAFC 133
G v MIBP [2018] FCA 1229
Gidley and Secretary, Department of Social Services (Social services second review) [2018] AATA 2890
Lumsden and Secretary Department of Social Security [1986] AATA 228
Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689
Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Ward and Secretary, Department of Family and Community Services [2000] AATA 212
Secondary Materials
Nil
Statement of Reasons
BACKGROUND

The Applicant, Mrs XSKH, has been in receipt carer allowance and carer payment since October 2015 in respect of the care provided to a care recipient.
On 14 May 2019, Services Australia – Centrelink (Centrelink) decided to cancel the Applicant’s carer payment and carer allowance from 14 May 2019. On 26 May 2021, Centrelink decided to raise and recover a debt of carer payment of $20,340.58 and a debt of carer allowance of $2,848.11 for the period 2 July 2018 to 8 May 2019 on the basis that the Applicant has no longer been providing care since 1 July 2018.
On 26 May 2021 the Applicant sought review of the decision and on 1 December 2021 an authorised review officer of Centrelink affirmed the decision under review. The Applicant sought review of the authorised review officer decision with the Social Services and Child Support Division (first review) of the Administrative Appeals Tribunal (the AAT) on 4 January 2022. On 14 July 2022, the first review of the AAT affirmed the decision under review. On 20 August 2022 the Applicant sought a review of the first review decision with the AAT.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions,[1]any applications for reinstatement to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal.
[1] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024.
In summary, the Applicant claims that the carer payment and carer allowance debts should not have been raised as she was providing care to the care recipient during the relevant period.
The Respondent’s position is that the Applicant did not qualify for carer payment and carer allowance during the period 2 July 2018 to 8 May 2019 and therefore has been overpaid carer payment and carer allowance for the period and the debts should be recovered. Consequently the first review decision should be affirmed.
For the reasons that follow, I have affirmed the decision under review. In making this decision, I have considered the oral evidence of the Applicant and the daughter of the care recipient. I have also considered the documents provided by the Applicant and the Respondent. The Respondent’s legal representative made written submissions prior to the hearing and oral submissions at hearing.
ISSUES
The issues that arise in this application are whether:
·     the Applicant was qualified to receive carer payment and carer allowance during the period 2 July 2018 to 8 May 2019 And, if not,
·     the Applicant has been overpaid carer payment and carer allowance; And, if so,
·     the Applicant is required to repay the consequential debt or debts.
CONSIDERATION
I have considered the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (Cth) (the Administration Act). I have also considered the Social Security Guide (the Guide) where relevant. In considering the Guide, I note that I am not bound to follow it.[2]
WAS THE APPLICANT QUALIFIED FOR CARER PAYMENT AND CARER ALLOWANCE BETWEEN 2 JULY 2018 AND 8 MAY 2019?
[2] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; G v MIBP [2018] FCA 1229.
In respect of qualification for carer allowance, these requirements are contained in section 954A of the Act which provides as follows:
(1) A person is qualified for carer allowance for a disabled adult (the care receiver) if:
(a) the care receiver is an Australian resident; and
(b) the care receiver is a family member of the person or is a person approved in writing by the Secretary for the purposes of this paragraph; and
(c) the care receiver has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 30, being a score calculated on the basis of a professional questionnaire score of at least 12; and
(d) the care receiver receives care and attention that meet the requirements in subsection (2); and
(e) the person is an Australian resident; and
(f) the person’s work in providing the care and attention is not on wages that are at or above the relevant minimum wage; and
(g) neither the person nor anyone else is qualified for carer allowance for the care receiver under section 954.
…
(2) The care and attention:
(a) must address special care needs:
(i) that the care receiver is assessed under the Adult Disability Assessment Tool as having; and
(ii) that relate to the care receiver’s bodily functions or to sustaining the care receiver’s life; and
(b) must be received by the care receiver on a daily basis, for a total of at least 20 hours a week; and
(c) must:
(i) be received by the care receiver from the person alone; or
(ii) be received by the care receiver from the person together with another person whose work in providing the care and attention is not on wages that are at or above the wages mentioned in paragraph (1)(f), whether or not both persons are present every day when the care receiver receives the care and attention; and
(d) must be received in a private home that is the residence of the care receiver, the person or the other person (if any), but not the residence of both the care receiver and the person; and
(e) must not be care and attention of a kind (if any) specified, by legislative instrument, by the Secretary for the purposes of this paragraph.
Disabled adult does not qualify for carer allowance for another disabled adult
(4) If a person is qualified for carer allowance for a disabled adult, the disabled adult is not able to qualify for carer allowance for another disabled adult.
Person cannot qualify for more than 2 carer allowances
(5) A person may qualify for carer allowance under this section and/or section 954 for 2, but no more than 2, disabled adults.
The qualification requirements for carer payment are contained in section 198 of the Act which provides as follows:
(1) A person is qualified for a carer payment if the requirements of this section are met.
Note: Sections 198AA, 198AB and 198AC allow the person to qualify in certain short‑term circumstances where the requirements would not be met.
Constant care for disabled adult or disabled adult and a dependent child
(2) The person must personally provide constant care for:
(a) either:
(i) if the person is the only person providing the constant care—a disabled adult (the care receiver) who has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 25, being a score calculated on the basis of a total professional questionnaire score of at least 10; or
(ii) if not—a disabled adult (the care receiver) who has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 80, being a score calculated on the basis of a total professional questionnaire score of at least 32; or
(d) a disabled adult and a dependent child of the adult (the care receivers), where:
(i) the disabled adult has been assessed and rated under the Adult Disability Assessment Tool and given a score under that assessment tool of at least 20, being a score calculated on the basis of a total professional questionnaire score of at least 8; and
(ii) the child is aged under 16; and
(iii) if the child is aged 6 or more—carer allowance is payable for the child; and
(iv) section 197D does not apply in respect of the care receivers.
Note: In a paragraph (d) case, subsection (9) deems certain supervision to constitute care.
Care in home
(3) The care must be provided in a private residence that is the home of the care receiver or care receivers.
The term ‘constant care’ is not defined in the Act. In Milne and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 689 the AAT explained the term as follows:
7. Section 198(2) of the Act says a person may be entitled to receive a carer’s payment if he or she provides “constant care” to a disabled person. The expression “constant care” is not defined in the Act. These words should be given their ordinary English meaning. “Care” may be active (actually doing something for someone, like helping them to dress or wash or feed) or it may be passive (supervising or monitoring them to ensure they are not injured or hungry or lost). A person does not take care of another person simply because the first person undertakes tasks like washing, ironing or cooking for the other person in the ordinary course of managing a household. The requirement that the “care” be “constant” means that the person must be acting as a carer on a more-or-less full-time basis. That is consistent with the apparent intention which underlies the legislative scheme creating the carer’s payment: the benefit is paid to replace income that has been foregone when a person gives up their regular paying job to take on the job of caring constantly for a sick relative or friend.[3]
[3] At paragraph 7.
The Guide states as follows in relation to the term ‘constant care’:
A carer is said to provide constant care if they personally provide care on a daily basis for a 'significant period' during each day. The care may be active, supervisory or monitoring. To provide care on a daily basis for a significant period, a carer should reasonably be expected to provide at least the equivalent of a normal working day in personal care, as the policy intent of providing CP (carer payment) is to recognise that the carer is not able to undertake substantial employment because of their caring responsibilities. This includes circumstances where the carer or care receiver are absent from the care situation for part of the day, but the intensity of the care required and provided during the remainder of any 24 hour period is such that it roughly equates to a normal working day.[4]
[4] Part 1.1.C.310 of the Guide.
Subsection 80 of the Administration Act provides as follows:
(1) If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a) who is not, or was not, qualified for the payment; or
(b) to whom the payment is not, or was not, payable (other than because of the operation of Division 3AA);
the Secretary is to determine that the payment is to be cancelled or suspended.
Centrelink has relied upon the statement of the care recipient, made on 14 May 2019,[5] written on her behalf by a delegate of Centrelink and signed by the care recipient. The care recipient states in the statement as follows:
‘I wish to inform that…is no longer caring for me since last year (2018 July 1). Please cease her role as carer as she did not fulfil her responsibilities from 1.7.18 till current.
This decision has been made after several discussions with … and cannot be objected by the carer as this is my final determined decision.’
[5] [T11].
On the basis of the information provided by the care recipient on 14 May 2019, Centrelink cancelled the Applicant’s carer payment and carer allowance.
The care recipient passed away on 7 August 2020. The Applicant claimed that the care recipient had severe depression and dementia, and relied on a conversation with the care recipient’s son in October 2018 at a restaurant in Preston where they spoke about traditional Chinese medication for the care recipient’s medication. The Applicant disputed the information provided by the care recipient to Centrelink and stated that the care recipient did not tell the truth.
In her claim for carer allowance in 2015, the Applicant stated that she was providing care 7 days per week and 21 hours care per week.[6] The Applicant stated that she provided the same level of care until May 2019. In her request for review with Centrelink on 23 June 2021,[7] the Applicant stated that she had been providing care for the care recipient as follows:
I have been a carer since 2010 and I had been providing care … from 7/2016 - 5/2019. On the 27/05/2021 Centrelink sent me a message accusing me of not providing care for … from 2/5/2018 to 8/5/2019. …passed away last year on the 7/8/2020. I had been caring for … incredibly hard for the 3 years even after she got dementia. Examples include bathing her, accompanying her to the doctor's office and physiotherapist, looking after her while she walked around, looking after her while she ate as well as organising her medicine and relaying information from letters, forms and emails. I also provided extra care such as cleaning for her, cooking for her, and helping her fill out forms, I aided her in applying for a two bedroom (sic) and I even accompanied her to China on multiple occasions.
[6] [T3] at page 34.
[7] [T15] at page 67.
In a subsequent statement on 3 April 2022,[8] the Applicant stated that she provided the care recipient the following care:
I helped her with daily activities like showering and grooming; changing her continence pads, helped her cook food and eat; read and translate letters; fill (sic) all of her forms, organize and schedule her medication and supplements, massage and help her exercise; as well as transferring her from beds, chairs and toilets and helping her walk around her house and outside. I also helped her go to the community clinic to attend her physiotherapy and translated for her and also helped her walk to St. Vincent's hospital to see a urologist and translate. I sometimes took her to the fitzroy pools to go swimming and to the spa.
[8] [T40] at page 148.
The Applicant was asked at the hearing about the difference in the care described in the two statements and she stated that she remembered later details of care she provided the care recipient that she could not earlier recall. In response to questions, the Applicant stated that the care increased when she moved to her own property. She also had to assist her with liaising with the manager of the Brotherhood of St Laurence regarding disputes with other residents and rental arrears.
In respect of the care provided to the care recipient, the Applicant gave evidence at the hearing that she usually arrived at the care recipient’s home at 8 or 9 am and sometimes she would stay on the weekend. She stated that the amount of care provided to the care recipient would vary day to day, sometimes 10 hours in a day if she slept at the care recipient’s home. The Applicant stated that she was providing at least 3-4 hours care per day to the care recipient, but the hours varied. She stated that she sometimes would go in the morning and then go back again later in the afternoon. On occasion, the care recipient would come to her house as she lived near the care recipient. If she had to sleep over at the care recipient’s house, she was usually providing more care. She stated that the care recipient would sometimes need help at night, but this was usually on the weekend that she would stay at the care recipient’s apartment.
The Applicant confirmed that she made a claim for carer allowance for another person in early 2017. The Applicant stated that the person was her ex-boyfriend and the father of her youngest son. She stated that she would take him to his doctor’s appointments, purchase urinary pads, purchase medication, assist with showers, provide haircuts, help with cleaning his dentures, and with his medication. She would also take him to the dentist when needed to attend appointments. She stated that she would also assist with walking. In response to the question as to how much time she provided care, she stated that she didn’t keep track of the time.
The report completed by the treating health professional, dated 16 August 2017, on behalf of the care recipient, answered ‘yes’ at question 6 of the report[9] in response to the question ‘Is this care required for a significant period each day (at least the equivalent of a normal working day)?’ The report further stated that ‘the patient needs help with ADL’s, with putting on lymphoedema stockings, with medications and medical visits’. The Applicant confirmed that the other person did not have any other carers. The Applicant’s evidence was that she was looking after the care recipient, for whom she was receiving carer payment, for a significant period each day, but also providing care to another person for a significant period each day.
[9] [ST1] at page 163.
In further oral evidence, the Applicant further stated that she would spend 8-9 hours per day in caring for both the care recipient and the other person. She would sometimes stay at the care recipient’s house on the weekends, to provide assistance to go to the toilet, but she didn’t require this every night.
The Applicant confirmed that she travelled to China annually and usually the care recipient would travel with her as the care recipient needed assistance to travel, but the Applicant would visit her parents and the care recipient would stay with her son. They would usually travel to the care recipient son’s home and then she would go visit her parents. In 2018 she travelled with the care recipient and first visited her parents and then the care recipient went to stay with her son. The movement records provided by Centrelink show that the Applicant was overseas from 4 November 2018 and returned to Australia on 12 December 2018 and the Applicant confirmed that she travelled to China with the care recipient during this trip. They then travel back to Australia together.
The Applicant confirmed that she also travelled to China between 9 May 2018 until 3 June 2018 and again on 27 March 2019 until 1 May 2019 and on each occasion travelled alone. She stated that the care recipient’s daughter looked after the care recipient while she was overseas. In respect of the trip on 27 March 2019, the Applicant stated that the care recipient’s daughter told her that she would be providing care to her mother from 27 March 2019. The Applicant stated that the daughter had a part-time job but stopped working and told her that she would take over the care of her mother. She thought, however, that she would still be entitled to carer payment because she was entitled to respite for 63 days.

When she returned to Australia on 1 May 2019, she did not resume care for the care recipient. She contacted the care recipient’s daughter on 2 May 2019 to go to Centrelink but she was unwell and couldn’t go on that day. While she was overseas, she was unsure who to call to change the carer for the care recipient but was also told by the care recipient that she needed to contact Centrelink. The Applicant stated that she was going to contact Centrelink on her return to Australia but was then advised by Centrelink that her carer payment and carer allowance had been cancelled.
She didn’t contact Centrelink about her payments as her English is not good. She stated that she didn’t contact Centrelink about the cancellation because she did not have any issue with the carer payment and carer allowance being cancelled but was unaware that it had been cancelled from 2 July 2018 and the first she knew that the care recipient had told Centrelink that she was not providing care from July 2018 was when she was notified of the debts. She stated that she contacted the care recipient’s daughter on one occasion after receiving notice of the debts, but the daughter answered and hung up the phone. After that one call, she did not call again until 2024. She was aware that the care recipient’s daughter went to Centrelink with the mother and what was stated at the time.
The care recipient’s daughter gave evidence on behalf of the Applicant. She stated that she started caring for her mother and moved in to live with her in March 2019 after the Applicant went overseas. Her mother would also stay at her home. She confirmed that her mother was diagnosed with mid-stage Alzheimer’s disease in late 2019 and that at the time of the statement she did not know about her Alzheimer’s and this was only diagnosed later in 2019. She stated that the care recipient was having problems with other people at the community centre where she often went, accusing people of taking her things and arguing and occasionally hitting other people.
She stated that she attended Centrelink office with her mother on 14 May 2019 when her mother made the statement in relation to the Applicant not providing care. She stated that there was an interpreter present and her mother told the Centrelink officer about the care not occurring from July 2018, which was written down and then her mother was asked to sign the form. At the time her mother made the statement, she said she asked her mother to discuss it further but her mother did not want to discuss it. She didn’t say anything to the interpreter about her mother’s statement but told the interpreter that ‘her mother’s mind was not okay’ and that she would say things which were not true.
The Respondent referred me to the decision of Confidential v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 582 where the AAT held ‘That test is not expressed in terms of a specified number of hours of care but whether care is provided for a significant period of each day such that the carer she is unable to undertake substantial employment.’[10] The Respondent further referred me to Gidley and Secretary, Department of Social Services (Social services second review) [2018] AATA 2890, where the AAT held:
Based on the ordinary meaning of the word “constant” and consistent with previous Tribunal decisions, the Tribunal finds that “constant care” in section 198(2)(a) of the Act requires continuing and regular care, rather than intermittent or spasmodic care,[25] for a significant period each day, on the equivalent of a full-time basis.[11]
[10]Confidential v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 582 at [19].
[11] Gidley and Secretary, Department of Social Services (Social services second review) [2018] AATA 2890 at [35]
I am not satisfied, based on the Applicant’s own oral evidence at hearing and documentary evidence, that that care provided by the Applicant was ‘constant care’ as required under section 198 of the Act from 2 July 2018. The oral evidence of the Applicant as to the amount of care provided to the care recipient was inconsistent, stating that she cared for the care recipient and another person for 8-9 hours, which does not constitute care on a more-or-less full-time basis. I also note that the care as described in the Applicant’s statement in the request for review was inconsistent with the subsequent statement made on 3 April 2022. These statements were inconsistent with the Applicant’s oral evidence. While the Applicant was providing care to the care recipient, I am not satisfied that the care was constant. The Applicant stated that she would stay overnight with the care recipient on some nights on the weekend but not during the week. It is unclear as to why this did not occur every night.
In the AAT first review of this matter, the Applicant’s ex-boyfriend and some of the care recipient’s neighbours gave oral evidence. This oral evidence was not provided to me, however, I have before me the written statements made in support of the Applicant’s application for review in support of the contention that she was caring for the care recipient until May 2019. In accordance with section 131P of the Administrative Review Tribunal Act 2024 (Cth), I have had regard to these statements in this review.
The first statement, dated 10 February 2022, translated to English, refers to the person knowing both the care recipient and the Applicant for many years. It then speaks generally about it been known widely that the Applicant provided care for the care recipient. The statement refers to the Applicant assisting the care recipient and travelling overseas and that the Applicant assisted with the care recipient reading letters, filling forms, making phone calls and other tasks such as buying groceries, taking the applicant for walks and going to see the doctor. The letter then refers to an incident in the mah-jong group regarding the care recipient’s conduct, where the care recipient hit another person, and that the Applicant solved the issue.
The ex-boyfriend made a statement dated 20 February 2022, attesting to the fact that they know that the Applicant had been caring for the care recipient and that due to the Applicant and the care recipient not being able to drive, that he had driven them to Richmond to go shopping and that he also dropped them off at the airport in November 2018 for their flight to China.
A translated statement of a friend of the care recipient, dated 18 March 2022, states that they knew that the Applicant has been caring for the care recipient including in relation to food, clothing, housing and transportation since 2016 and that they knew the Applicant and the care recipient travelled to China together and that the care recipient told them that they visited the Applicant’s home town and that the care recipient had told her how appreciative she was of all the Applicant had done for her.
The letter from the Manager of independent living service at the Brotherhood of St Laurence dated 29 March 2022, confirms that the Applicant was the carer for the care recipient during July 2018 to March 2019 and that the Applicant assisted with several matters relating to rental arrears and behavioural issues relating to the care recipient.
I do not consider that the statements provided on behalf of the Applicant assist in this matter and do not give these statements any weight. The statements do not show any familiarity with the extent of care provided by the Applicant to the care recipient and speak only generally to care being provided. While the statements show that some assistance was being provided by the Applicant, the statements do not support that the care was more intermittent care of the care recipient rather than constant care for most of the day on a daily basis.
The care recipient’s daughter’s evidence regarding visiting Centrelink with her mother on 14 May 2019 was that she was present at the time of the statement made by her mother and heard what her mother stated to the Centrelink officer, but did not dispute the statement made at the time. She stated that she said something to the interpreter about her mother not telling the truth but did not say anything to the Centrelink officer. I have difficulty accepting that the care recipient’s daughter was present at the time the statement was made to Centrelink and that knowing that the statement was not true, did not say anything at the time. On this basis, I do not give any weight to the care recipient’s daughter’s evidence now which is to the contrary. At most, I am prepared to accept that the care recipient’s daughter had no knowledge of what care was being provided.
I note that the Applicant stated that the care recipient suffered from Dementia and severe depression and that her statement should not be accepted. There is no medical evidence before me which shows that the care recipient was diagnosed with Dementia. The care recipient’s daughter stated that her mother was diagnosed with Alzheimer’s in late 2019 but there is no corroborating medical evidence of this diagnosis. At best, the Applicant’s evidence of the care recipient’s dementia was based on her opinion of her circumstances at the time.
I am satisfied that the Applicant ceased providing care to the care recipient from 2 July 2018, as stated to Centrelink by the care recipient on 14 May 2019. The statement was made by the care recipient with an interpreter present, read to her and signed by the care recipient at the time. The statement was also witnessed by the Centrelink officer at the time. The care recipient’s daughter, who was present when the statement was made, did not raise any issues with the Centrelink officer at the time of the statement. The care recipient’s daughter gave evidence that she told the interpreter that her mother would say things which were not true but I do not accept that the care recipient’s daughter gave any indication at the time of the care recipient making the statement that the contents of the statement should not be accepted. I am also not satisfied that the Applicant has presented any evidence to the Tribunal which indicates that the statement made by the care recipient should not be accepted. While the Applicant stated that the care recipient had Dementia or Alzheimer’s disease, there is nothing in the evidence before me to confirm a diagnosis of either condition at the time of the care recipient making the statement on 14 May 2019. The Applicant has stated that they were no longer caring for the care recipient from at least March 2019 when she travelled to China.
Even if I did not accept the care recipient’s statement, the other evidence before me leads me to find that the Applicant was not providing constant care of the care recipient. The oral evidence of the care provided to the care recipient was inconsistent, with the Applicant stating that she provided between 8-9 hours care to both the care recipient and her ex-boyfriend, for whom she was providing care at the same time, and according to the medical reports provided to Centrelink regarding the claim for carer allowance, required significant assistance with activities of daily living. The Applicant stated that she would provide overnight care on weekends, but not every night. No reason was provided why the care recipient would require overnight care on only weekend nights and no other nights.
Furthermore, the Applicant’s written statements of the care provided were inconsistent and also inconsistent with the medical report provided with the initial claim. In the medical report it reports that the care recipient is independent in feeding, grooming, dressing and toilet use, albeit with the occasional (weekly) accident with her bowels and bladder.[12] The Applicant’s written statements indicated that she was providing this type of care to the care recipient from the time she started providing care, notwithstanding the medical report indicating differently.
[12] [T4]
Notwithstanding my concerns about the level of care the Applicant was providing generally, the care recipient’s 14 May 2019 statement supports that up until 1 July 2018, the Applicant was providing care to her. However, based on that statement, from 2 July 2018, I am not satisfied that the Applicant was providing constant care and I am satisfied that the Applicant stopped providing care from 2 July 2018. Accordingly, I am not satisfied that the Applicant remained qualified for carer payment from 2 July 2018. Similarly, I am satisfied that as the Applicant stopped providing care. she was no longer providing for the care recipient’s special care needs that related to the care recipient’s bodily functions or to sustaining her life which would qualify her for carer allowance.
On the basis of the findings above, I find that the Applicant was no longer qualified for carer payment and carer allowance for the period from 2 July 2018 to 8 May 2019. I have had the benefit of the debt calculations as provided by Centrelink in this application, which were not disputed by the Applicant.[13] The Applicant has a debt of carer payment of $20,340.58 for the period from 2 July 2018 to 8 May 2019 and a debt of carer allowance of $2,848.11 for the period from 2 July 2018 to 8 May 2019 pursuant to subsection 1223(1) of the Act. I am satisfied based on the debt calculations provided that the debts of carer payment and carer allowance are correct.
[13] [T21] and [T23].
Are there grounds for write off or waiver of recovery of all or part of the debts?
Having determined that there are debts of carer payment and carer allowance, I have considered whether the debts should be recovered. Part 5.4 of the Act deals with non-recovery of debts. Usually, a debt must be repaid unless the law provides otherwise. Section 1236 deals with the write off of debts, subsection 1237A(1) allows for waiver of a debt which is caused solely by administrative error and section 1237AAD allow debts to be waived due to special circumstances.
Write off
Write off temporarily suspends recovery. Pursuant to section 1236 of the Act, recovery of a debt can be written off only if certain strict conditions are met, such as the debt is irrecoverable, the person’s whereabouts are unknown, they have no capacity to repay the debt, or it is not cost effective for the Commonwealth to recover the debt.
The Applicant is currently in receipt of jobseeker payment and lives in government housing. The Applicant stated that they are in arrears in respect of the rent, around $1,000. She stated that she owes about $9-$10,000 to family and friends but did not indicate any current repayment regime. I was not provided with any other evidence of these debts.
Part 6.7.3.10 of the Guide states that ‘A debtor is taken to have capacity to repay unless recovery would result in the debtor being in severe financial hardship. The test for financial hardship is based on the debtor's individual circumstances.’ The term ‘severe financial hardship’ is not defined in the Act or Administration Act. What constitutes severe financial hardship in the context of the repayment of debts has been considered by the AAT. In Lumsden and Secretary Department of Social Security [1986] AATA 228, the AAT said as follows (at paragraph 19):
19. The expression "severe financial hardship" is not defined. In its relevant sense "severe" means "hard to sustain or endure; arduous" (The Shorter Oxford English Dictionary 1973, pp. 1957-8). "Financial" means "of or pertaining to finance or money matters" (ibid p. 752). "Hardship" includes severe suffering; extreme privation. (ibid p. 926). "Severe financial hardship" is the equivalent of "arduous financial suffering". The meaning of the words is not in doubt: they are a clear direction by the legislature that the section is only to be applicable when the requisite severity of financial hardship is present.
It was submitted that as the Applicant is in in receipt of jobseeker payment, there is some capacity to repay, even though limited. I accept the proposition that there is, due to the Applicant currently receiving jobseeker payment, some capacity to repay the debts by way of minimal regular repayments from her jobseeker payment. It is open to the Applicant to discuss the amount to be repaid with Centrelink. Accordingly, I find that the requirements for write off of the debts under section 1236 of the Act are not met.
Sole administrative error waiver
Subsection 1237A(1) of the Act provides as follows:
(1) 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.
Note: Subsection (1) 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).
The Commonwealth’s right to recover a debt must be waived if the debt is attributable solely to an administrative error. In the AAT decision of Ward and Secretary, Department of Family and Community Services [2000] AATA 212, Deputy President Forgie held that the word ‘solely’ meant ‘exclusively’, ‘only’ or ‘to the exclusion of all else’. Specifically, at paragraph 47 of the decision, Forgie DP stated:
This means that the Secretary’s duty to waive does not extend to those debts which are attributable to errors or other factors which are independent of the Commonwealth’s administrative error. It makes no difference that those other errors or factors are minor …
There is nothing in the evidence before me which would lead me to conclude that there was any error on the part of the Commonwealth in this matter. Rather, the debts are due to the Applicant not being qualified for carer payment and carer allowance rather than any error on the part of Centrelink. As I am not satisfied that there has been sole administrative error on the part of the Commonwealth in this matter, I the debt cannot be waived under subsection 1237A(1) of the Act and it is not necessary to consider whether the payments were received in good faith.
Special circumstances waiver
Section 1237AAD of the Act provides for waiver of recovery of all or part of a debt as follows:
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) it is more appropriate to waive than to write off the debt or part of the debt.
I have considered the circumstances of the Applicant as stated at the hearing. I have also considered the Respondent’s submissions in this regard, and the case authorities referred to in relation to the section 1237AAD of the Act.
In Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435, the AAT commented:
48. There is nothing in s1237AAD which suggests that the word 'knowingly' should be given any meaning other than that a person has actual knowledge, rather than constructive knowledge, that he or she is making a false statement or representation or that he or she is failing or omitting to comply with a provision of the Act. The actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement or the act or omission...[14]
[14] (1996) 45 ALD 435 at [48].
I am satisfied that the debts did not result wholly or partly from the Applicant or any other person knowingly making a false statement or false representation or knowingly failing or omitting to comply with one of the Acts. The Applicant considered that she was still providing constant care to the care recipient from July 2018. While the Applicant’s care of the care recipient stopped in March 2019 when the care recipient’s daughter started caring for her mother, the Applicant thought she was still entitled to carer payment and carer allowance as she thought she was entitled to the payment on the basis that the temporary cessation of care provision applied. Accordingly, section 1237AAD(a) of the Act is met.

I have considered the Applicant’s circumstances to determine whether there are special circumstances which make it desirable to waive the debt. As regards “special circumstances”, the term is not defined in the legislation. The Federal Court and the AAT have considered the issue of special circumstances on a number of occasions. In every case, the individual circumstances of the case were examined to determine whether they were such that it would be unjust, unreasonable or inappropriate for the debt to be recovered.
In Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25, the Federal Court emphasised that it is not the intention of Parliament that the exercise of this discretion be confined to the “exceptional” case, but rather that there is something that distinguishes the case from the ordinary or usual case.[15] In addition, the Full Federal Court in Dranichnikov v Centrelink [2003] FCAFC 133 determined that whether there are special circumstances in a particular case depends on whether there are circumstances that would distinguish the case from the usual.[16] Further, for special circumstances to exist, there must generally be some factors, apart from financial hardship alone, which distinguish the case and set it apart from other similar cases.
[15] [2007] FCA 25 at [33].
[16] [2003] FCAFC 133 at [66]
The Applicant submitted that there are a number of matters that should be taken into account as constituting special circumstances in her case that make it appropriate to waive the debts. The Applicant has stated that this debt has caused considerable anxiety and has affected her mental health. She stated that there have been physical affects to her health as well including high blood pressure, cholesterol and insomnia. She stated that she has experienced an angina attack and was taken to hospital during this episode. The Applicant also referred to her lower back pain and having had surgery for a detached retina.
In regard to the debts, the available evidence before me indicates that the recovery is currently paused and no repayment arrangements are in place. The Applicant’s financial circumstances are that they are currently residing in subsidised rental housing and are in receipt of jobseeker payment. She stated that she is in arrears of around $1,000 on her rent. The Applicant stated that she owes some family and friends around $10,000. She stated that she owes money for her son’s school fees. Apart from her oral evidence, I have no other evidence of the outstanding debts referred to by the Applicant, but I accept her evidence of these outstanding debts.
The Applicant gave evidence that her youngest son, who is currently in year nine at school, has had difficulties at school due to bullying and did not attend school last year. He has recently returned to school and is now living with his father, although the relationship is deteriorating because his father has been drinking. He has not lived with her for some time and did for a time live with his older brother who is studying at university. Her youngest son has not lived with her due to his anger issues and because he has been difficult and violent. She stated that a social worker has been assisting in her son’s behavioral issues.
Summary of the Respondent’s submissions in relation to special circumstances
The Respondent’s written and oral submissions as to why there are not special circumstances in the Applicant’s case that make it appropriate to waive the debts included as follows:
· The Respondent submitted that there was no evidence that the Applicant’s circumstances are sufficiently unusual, uncommon or exceptional so as to make her case markedly different from the ordinary run of cases and otherwise special.
· Whilst the Applicant has medical conditions and some ill health it is not in and of itself unusual.
· Even if the requirements of section 1237AAD of the Act are satisfied, waiver is not automatic and it still may not be appropriate to exercise the discretion given the debt, having regard to the object and purpose of the Act, and the circumstances in which the debt arose.
I accept the Respondent’s submissions that the Applicant’s medical circumstances have caused difficulty, but they are not sufficiently unusual, uncommon or exceptional so as to make her case different from the usual or ordinary run of cases. I have taken all matters into account, both individually and cumulatively in relation to the Applicant’s circumstances. I am not satisfied that the Applicant’s circumstances considered individually or cumulatively make it unfair for the overpaid carer payment and carer allowance debts to be repaid nor that it would be unjust, unreasonable or inappropriate to recover the debts. The Applicant received in excess of her entitlement and I am not satisfied that there are special circumstances in the Applicant’s case that make it desirable to waive all or part of the debts.
It follows that section 1237AAD of the Act does not apply. There being no other relevant legislative provisions, I conclude that the debts must be recovered.
DECISION
The decision under review is affirmed.

Date of hearing: 7 April 2025

Applicant: Self-represented.

Respondent: Ms Peta Heffernan, AGS.

Date of hearing:	7 April 2025
Applicant:	Self-represented.
Respondent:	Ms Peta Heffernan, AGS.