YKBJ and Secretary, Department of Social Services
[2015] AATA 65
•4 February 2015
[2015] AATA 65
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/3436
Re
YKBJ
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member CR Walsh
Date 4 February 2015 Place Perth The Tribunal affirms the decision under review.
…(sgd) CR Walsh.................
Senior Member CR Walsh
CATCHWORDS
SOCIAL SECURITY – overpayment of parenting payment, family tax benefit and childcare benefit – overpayments debts due to Commonwealth – write-off of debts inappropriate – debts not attributable solely to administrative error made by Centrelink – no “special circumstances” warranting waiver of debts – decision under review affirmed
LEGISLATION
A New Tax System (Family Assistance) (Administration) Act 1999 – s 71 - s 71(1) – s 71(2) – s 71C – s 95 – s 97 - s 101
Social Security Act 1991 – s 23- s 500I – s 501 – s 503 – s 1223(1) - s 1236 - s1237A – s 1237AAD
CASES
Angelakos and Secretary, Department of Employment and Workplace Relations [2007] FCA 25
Beadle and Director General of Social Security (1985) 60 ALR 225
Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114
Dranichnikov v Centrelink [2003] 75 ALD 134
Fischer v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2010) 185 FCR 52
Groth v Secretary, Department of Social Security [1995] FCA 989; (1995) 40 ALD 541
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
Re Ivocic and Director General of Social Services [1981] AATA 57
Sekhon v Secretary, Department of Family and Community Services (2003) 132 FCR 126
Re Ward and Secretary, Department of Family and Community Services [2000] AATA 212
SECONDARY MATERIALS
Guide to Social Security Law – s 6.7.3.30
REASONS FOR DECISION
Senior Member CR Walsh
4 February 2015
INTRODUCTION
In the period from 1 July 2011 to 30 June 2013 (Relevant Period), YKBJ received overpayments of parenting payment (PP), family tax benefit (FTB) and child care benefit (CCB) totalling $84,630.96. These overpayments constitute debts to the Commonwealth (i.e. Centrelink). At issue is whether all or part of YKBJ’s debts should be waived.[1]
[1] It is common ground that it is inappropriate write-off YKBJ’s PP, FTB and CCB debts in this case. Consequently, whether YKBJ’s debts should be written off under s 1236 of the Social Security Act 1991 or s 95 of the A New Tax System (Family Assistance) (Administration) Act 1999, as relevant, has not been considered in these Reasons for Decision.
FACTUAL & PROCEDURAL BACKGROUND
YKBJ was married to Mr YKBJ throughout the Relevant Period.
Estimates and income in the Relevant Period
On or about 29 August 2011, YKBJ lodged a Centrelink “Newborn Child Claim for Paid Parental Leave, Family Assistance and Medicare” at Centrelink, in which she estimated that, in the 6 month period from 10 August 2011 to 10 February 2012, her taxable income would be $5,000 and Mr YKBJs' taxable income would be $60,000.
Other combined income estimates that YKBJ provided to Centrelink during the Relevant Period, for FTB purposes, are:
·$105,000, provided on 15 June 2011;
·$146,000, provided on 31 August 2011;
·$280,000, provided on 2 March 2012; and
·$231,140, provided on 7 August 2012.
Based on Mr YKBJ's income tax assessments for the income years ended 30 June 2012 and 30 June 2013, Mr YKBJ’s taxable income was $167,426 in the 2011/2012 year and $201,463 in the 2012/2013 year.
Letters and notices sent to YKBJ by Centrelink
PP notices
On 4 March 2011, Centrelink sent a letter to YKBJ in relation to her PP – Partnered (4 March 2011 Letter). The 4 March 2011 Letter stated:
Information about your Parenting Payment – Partnered
· As your and/or your partner's circumstances have changed, you are no longer required to report every two weeks to get paid.
· You must tell us within 14 days about events or change in circumstances affecting your payment (see the enclosed form ‘Changes you must tell Centrelink about’ for details).
· If your family income has changed from what you previously told the Family Assistance Office, please call 13 6150 to provide a new estimate for Family Tax benefit.
……….
RATE OF PAYMENT - Your future rate of payment may change depending on the amount of your earnings, other income or assets.
.........
EARNINGS INFORMATION - You need to tell us your earnings before tax and other deductions such as salary sacrifice. The amount must be for work performed in the Centrelink fortnight prior to notification and only for the amount in the Centrelink fortnight, this may be different from your salary pay fortnight. [Emphasis added]
Enclosed under cover of the 4 March 2011 Letter was a form titled “Changes you must tell Centrelink about”. That form stated:
You must tell Centrelink within 14 days (28 days if residing outside Australia) if any of the following happens to you/your partner, or you become aware that any of the following is likely to occur.
· You can tell us by writing, phoning or coming into any of our offices.
If you don’t tell Centrelink about changes you could have a debt. If you have a debt you may have to pay all or some of the money back.
……..
Employment
· Start, stop, recommence or change work in any form of profession, trade business or self-employment.
· Income from employment changes (the amount earned goes up or down).
The 4 March 2011 Letter recorded the assessed “business income” for Mr YKBJ’s “electrical contractor (non-farming sole trader)” business as $0 and no income was recorded in relation to income from fortnightly earnings.
Under the heading “Other Details”, the 4 March 2011 Letter stated that YKBJ had last advised Centrelink of her and Mr YKBJ’s “combined taxable income” on 22 July 2010, namely $156,825 per annum for the 2010/2011 financial year.
Similar letters to the 4 March 2011 Letter were sent to YKBJ by Centrelink on 6 June 2011, 29 August 2011 (albeit in this letter, it was noted that the estimate provided for FTB purposes had been updated to $105,000 on 1 July 2011), 21 November 2011 (noting that the estimate provided for FTB purposes had been updated on 31 August 2011 to $146,000, 13 February 2012 and 7 May 2012 (noting that the estimate provided for FTB purposes had been updated on 2 March 2012 to $280,000) (Other PP Notices).
On 17 January 2012, Centrelink sent YKBJ an “Income Statement” detailing information Centrelink held in relation to her and asking her to contact Centrelink if she believed that any of the details were incorrect (17 January 2012 Income Statement). The 17 January Income Statement recorded the following information in relation to YKBJ's income and assets:
·financial investment income of $41.40 annually, with a date of effect of 20 March 2010;
·cash/investments or savings of $1,380, with a date of effect of 10 November 2011;
·household and personal effects of $5,000, with a date of effect of 12 February 2010; and
·motor vehicle, boat and caravan of $26,500, with a date of effect of 12 February 2010.
On 31 May 2013, Centrelink sent YKBJ a letter regarding her PP, to similar effect but in a revised format to the letters referred to in paragraphs 6 to 11 above (31 May 2013 Letter). The 31 May 2013 Letter advised YKBJ that Centrelink had used following information in calculating YKBJ's regular PP:
·assets: $60,784;
·Mr YKBJ’s annual other income: $3.38;
·Mr YKBJ’s fortnightly earned income: $0;
·YKBJ's annual other income: $3.38; and
·YKBJ's fortnightly earned income: $0.[2]
[2] A similar letter was sent to YKBJ on 30 July 2013, with the same income amounts recorded, but with the value of assets recorded as $35,284.
On 9 July 2013, Centrelink sent YKBJ a letter regarding the requirement to report fortnightly for PP purposes (9 July 2013 Letter).
FTB notices
On 15 June 2011, Centrelink sent YKBJ a letter in relation to her FTB entitlements (15 June 2011 Letter). The 15 June 2011 Letter noted that no income was required for FTB Part A and that FTB Part B was calculated on an income of $5,000.
Similar letters were sent to YKBJ by Centrelink on 31 August 2011 (with FTB Part B based on an income of $6,000), 26 September 2011, 10 November 2011, 2 March 2012, 14 April 2012, 19 June 2012, 6 July 2012 and 20 June 2013 (Other FTB Notices).
CCB notices
On 2 August 2011, Centrelink sent YKBJ a letter in relation to her CCB entitlements for the 2010/2011 financial year (2 August 2011 Letter). The 2 August 2011 Letter explained that YKBJ received “the maximum amount of [CCB] because [she] or [her] partner received an income support payment [i.e. a PP] for the whole financial year”.
A similar letter was sent by Centrelink to YKBJ on 1 August 2012 with respect to YKBJ's CCB entitlements for the 2011/2012 financial year (1 August 2012 Letter).
On 29 February 2012, Centrelink sent YKBJ an “Assessment Notice of Child Care Benefit for approved care” (CCB Assessment Notice). The CCB Assessment Notice stated:
Your family has been assessed as being entitled to the maximum rate of Child Care benefit. Your rate of Child Care Benefit has been calculated by taking into account the following information: Your income details are not required as you are receiving an income support payment.
Similar notices were sent to YKBJ by Centrelink on 25 June 2012, 25 October 2012 and 25 June 2013 (Other CCB Notices).
Decisions relating to debts and review processes
On 12 July 2013, Centrelink commenced a review into YKBJ's entitlement to PP.
On 24 July 2013, Centrelink wrote to YKBJ requesting that she provide all payslips for her partner's employment for the period from 1 July 2012 to 24 July 2013.
On 12 August 2013, Centrelink suspended YKBJ's PP, which affected her FTB entitlements.
On 16 August 2013, YKBJ provided Centrelink with an updated income estimate for the 2013/2014 financial year of $170,000.
On 4 February 2014, Centrelink raised a debt in relation to past PP made to YKBJ. The quantum of YKBJ’s PP debt was later recalculated and increased to $17,442.51. The PP debt also caused debts to be raised in relation to FTB, totalling $21,313.90, for the period 1 July 2012 to 30 June 2013.
By letter dated 7 February 2014, Mr YKBJ disputed the decision to raise and recover debts against YXBJ. This letter was recorded on Centrelink’s computer system on 20 February 2014 and was considered to be a request by YKBJ for an internal review of Centrelink’s decisions in relation to YKBJ’s FTB debts.
On 7 March 2014, Centrelink sent YKBJ various accounts payable for CCB and FTB, based on recalculations of the debts, as follows:
Payment
Financial year
Amount already paid
Amount entitled to
Amount of overpayment
CCB
2011-12
$6,146.91
$311.05
$5,835.86
CCB
2012-13
$12,555.38
$3,310.27
$9,245.11
FTB
2011-12
$27,793.58
$0
$27,793.58
FTB
2012-13
$30,083.30
$5,769.40
$24,313.90
On 10 March 2014, YKBJ sought an internal review of Centrelink’s decision to raise the PP debt against her.
On 11 April 2014, a Centrelink authorised review officer (ARO) affirmed Centrelink’s earlier decisions to raise and recover the PP, FTB and CCB debts from YKBJ (ARO Decision).
On 23 April 2014, YKBJ applied to the Social Security Appeals Tribunal (SSAT) for a review of the ARO Decision.
On 8 June 2014, YKBJ submitted a SSAT “Applicant Statement of Financial Circumstances (Centrelink reviews)” form with the SSAT.
On 9 June 2014, the SSAT affirmed the ARO Decision (SSAT Decision).
On 4 July 2014, YKBJ applied to the Tribunal for a review of the SSAT Decision.
ANALYSIS
Overpayment of PP, FTB & CCB
As stated in the “Introduction”, it is common ground that YKBJ was overpaid PP, FTB and CCB (totalling $84,630.96) in the Relevant Period.
More specifically, it is not in dispute that YKBJ was overpaid the following social security and family assistance payments in the following periods:
· PP totalling $17,442.51, in the period 1 July 2011 to 15 July 2013;
· FTB totalling $27,793.58, in the period 1 July 2011 to 30 June 2012;
· FTB totalling $24,313.90, in the period 1 July 2012 to 30 June 2013;
· CCB totalling $5,835.86, for the period 1 July 2011 to 30 June 2012; and
· CCB totalling $9,245.11, for the period 1 July 2012 to 21 April 2013.
It is common ground that in the period 1 July 2011 to 15 July 2013, YKBJ was paid PP at a rate that did not take into account income earned by her husband, Mr YKBJ, and that had Mr YKBJ's income been properly taken into account for the period 1 July 2011 to 15 July 2013, YKBJ's rate of PP would have been nil. Therefore, pursuant to s 500I of the Social Security Act 1991 (SSA), PP was not payable to YKBJ in the period 1 July 2011 to 15 July 2013, which resulted in an overpayment of PP to YKBJ, totalling $17,442.51.
When a person receives a social security benefit or an income support supplement (such as PP), they effectively receive the maximum amount of FTB and CCB. In the present case, YKBJ received the maximum rate of FTB and CCB for the 2011/2012 and 2012/2013 financial years because she was receiving PP in those financial years. The income estimates that YKBJ provided to Centrelink in the Relevant Period were not taken into account because the calculations of the rate of FTB and CCB payable to her were based on her being a recipient of PP, rather than on the combined income of her and her husband, Mr YKBJ.
Since, for the reasons provided above, PP was not payable to YKBJ in the Relevant Period, the rate of FTB and CCB paid to YKBJ should have been calculated based on YKBJ’s estimates of income, rather than YKBJ’s status as a PP recipient.
Overpayments debts due to the Commonwealth
As stated in the “Introduction”, it is common ground that YKBJ’s overpayment of:
· PP is a debt to the Commonwealth, pursuant to s 1223(1) of the SSA
· FTB is a debt due to the Commonwealth, pursuant to s 71 of the A New Tax System (Family Assistance) (Administration) Act 1999 (FAAA); and
· CCB is a debt to the Commonwealth, pursuant to section 71C of the FAAA.
Write-off or waiver of debts
Write-off
As stated in the “Introduction”, it is common ground that it is inappropriate to write-off YKBJ’s PP debt under s 1236 of the SSA or to write-off YKBJ’s FTB and CCB debts under s 95 of the FAAA.
Waiver – debt attributable solely to Centrelink administrative error
If all or part of YKBJ’s debts are attributable solely to an administrative error made by the Commonwealth (i.e. Centrelink), and certain other criteria are satisfied, the Secretary is required to waive the right to recover YKBJ’s PP debt pursuant to s 1237A of the SSA and her FTB and CCB debts pursuant to s 97 of the FAAA.
Both s 1237A of the SSA and s 97 of the FAAA only allow for waiver of that part of a debt that is “attributable solely to an administrative error” made by Centrelink.
The phrase “attributable solely to an administrative error” has been considered extensively by the courts and by this Tribunal.
For example, in Sekhon v Secretary, Department of Family and Community Services (2003) 132 FCR 126, the Full Federal Court considered the meaning of the phrase “attributable solely to an administrative error” and, at [35], Selway J said:
The ordinary or usual interpretation of the phrase “attributable solely to” is that it refers to the single or sole cause of the relevant act or event. The word “attributable” means “capable of being attributed”. It involves an objective assessment of causation. The words “a debt attributable solely to an administrative error” can be paraphrased as meaning that the only cause that objectively can be ascribed to the relevant debt is an administrative error. [Emphasis added] [3]
[3] See also Re Ward and Secretary, Department of Family and Community Services [2000] AATA 212 at [47].
In relation to when a debt is “attributable solely to an administrative error,” the “Guide to Social Security Law” (Guide)[4] states (at s 6.7.3.30):
In general, wherever a mistake has been made in administering a payment, the debt will arise ‘solely to an administrative error’ providing the recipient’s conduct has not contributed to the debt in any way.
Examples of administrative error include mistakes in:
·Calculating the amount of a payment,
·Determining which social security payment/s a person is entitled to be paid, and
·Correctly actioning information provided by the recipient.
The requirement that part of the debt must have arisen ‘solely’ from administrative error means that there must have been no other factors that caused the debt to arise or contributed to the debt arising. The part of the debt must have arisen as a result of administrative error alone. [Emphasis added]
[4] The Tribunal should apply lawful ministerial policy unless there are cogent reasons not to: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645 per Brennan J.
YKBJ contends that at all times in the Relevant Period she complied with her obligation to inform Centrelink of any changes in her circumstances within 14 days and, once Centrelink had been informed of such a change, she had discharged her Centrelink reporting obligations.
YKBJ asserts that, in the Relevant Period, she acted in reliance of Centrelink’s instructions in the 4 March 2011 Letter (referred to in paragraphs 6 to 9 above). That is, from 4 March 2011, YKBJ was, based on the instructions in the 4 March 2011 Letter, “no longer required to report [to Centrelink] every two weeks to get paid [PP]”. YKBJ contends that in the Relevant Period she also acted on the instructions provided in the other letters (notices) received from Centrelink in the Relevant Period, including the Other PP Notices, the 17 January 2012 Income Statement and the 31 May 2013 Letter (referred to in paragraphs 10 to 12 above). According to YKBJ, it was not until she received the 9 July 2013 Letter (referred to in paragraph 13 above), in which she was instructed to report on a fortnightly basis for PP purposes, that she considered that she was once again required to report on a fortnightly basis for PP purposes (as was the case prior to 4 March 2011). Thus, YKBJ’s contention is that, in the period from the 4 March 2011 Letter to the 9 July 2013 Letter, regularly fortnightly reporting did not form part of her reporting obligations to Centrelink as, in this period, she received no explicit written instruction from Centrelink to report income on a fortnightly basis.
YKBJ argues that upon receipt of any letters (or notices) from Centrelink in the period 4 March 2011 to 9 July 2013, which stated that fortnightly earnings needed to be reported, she queried with Centrelink the requirement for fortnightly reporting and was advised by Centrelink to disregard this instruction as she was not required to report fortnightly in accordance with the instructions given in the 4 March 2011 Letter. Further, according to YKBJ, when she visited the reporting page on Centrelink’s website in the Relevant Period, she was presented with the following statement, which she relied on as being correct:
View your reporting dates
You are not required to report your employment income on a regular basis. If you need to report changes in your income, please contact Centrelink.
YKBJ further contends that, in the Relevant Period, she fulfilled her reporting obligations to Centrelink as “all reasonably practicable efforts were made” by her to verify that she complied with her reporting obligations correctly. YKBJ commented that Centrelink does not have separate telephone numbers or departments for queries regarding the different types of social security and family assistance payments (such as PP, FTB and CCB), and that the same contact telephone number was provided on each Centrelink letter (notice) sent to her during the Relevant Period. Consequently, YKBJ argues that when she contacted Centrelink on the telephone number provided in the Relevant Period, to report a change in circumstances, she had fulfilled her Centrelink reporting obligations. YKBJ contends that she “trusted the Centrelink system”, noting that Centrelink’s reporting system and correspondence could often be confusing and complicated.
YKBJ noted that each financial year Centrelink reconciled her and her husband’s reported income against their actual income as set out in their income tax assessments which they provided to Centrelink. Accordingly, YKBJ’s contention is that in the Relevant Period Centrelink should have been in a position to confirm her actual earnings and establish that she was not in fact entitled to the PP in the Relevant Period and, yet, the PP continued to be paid to her by Centrelink throughout the Relevant Period. As such, YKBJ’s assertion is that the overpayments of PP, FTB and CCB, and the resulting debts, are attributable solely to Centrelink administrative error. YKBJ’s position is, in summary, that throughout the Relevant Period she had, to the “best of her knowledge”, complied with Centrelink’s reporting requirements and, therefore, she was not to blame for the overpayments and the resulting debts.
As discussed above (in paragraphs 6 to 12), in the Relevant Period, Centrelink sent YKBJ numerous letters (notices) to YKXB concerning her PP, including the 4 March 2011 Letter, Other PP Letters, the 17 January 2012 Income Statement and the 31 May 2013 Letter. Each of the letters (notices) contained information about assets, money in financial institutions and the nil income from Mr YKBJ’s business. No income amount for fortnightly earnings is recorded under “Earnings Information” in any of the letters (notices). However, the letters (notices) clearly state that any fortnightly earnings need to be reported to Centrelink.
In such circumstances, it cannot be said that the only cause that can be ascribed to YKBJ’s debts in the Relevant Period is Centrelink administrative error: Sekhon and Re Ward. YKBJ’s conduct in failing to advise Centrelink of her and her husband’s fortnightly earnings for PP payment purposes in periods when Mr YKBJ was earning a fortnightly income has contributed to her PP debt and, as such, the debt is not solely attributable to Centrelink administrative error: Guide at s 6.7.3.30. Just because, in the Relevant Period, YKBJ found Centrelink’s letters (notices) and reporting system often confusing and complicated that YKBJ’s PP debt (and, accordingly, her FTB and CCB debts) is attributable solely to Centrelink administrative error.
As discussed (refer to paragraph 36 above), the position with respect to YKBJ’s FTB and CCB debts follows on from the position with respect to her PP debt (i.e. because YKBJ’s FTB and CCB debts have arisen due to YKBJ being in receipt of PP). Since the Tribunal finds that YKBJ’s PP debt is not solely attributable to Centrelink administrative error, it follows that YKBJ’s FTB and CCB debts are also not solely attributable to Centrelink administrative error. Consequently, YKBJ’s PP debt cannot be waived pursuant to s 1237A of the SSA and her FTB and CCB debts cannot be waived pursuant to s 97 of the FAAA.
Having found that YKBJ’s PP debt was not solely attributable to Centrelink administrative error, it is unnecessary to consider whether the other requirements for waiver of the PP debt, in s 1237A of the SSA, have been satisfied in this case (for example, whether the PP that gave rise to the debt was received by YKBJ in “good faith”).
Similarly, having found that YKBJ’s FTB and CCB debts were not solely attributable to Centrelink administrative error, it unnecessary to consider whether the other requirements for waiver of the FTB and CCB debts, in s 97 of the FAAA, have been satisfied in this case. That is, whether the FTB and CCB payments that gave rise to YKBJ’s FTB and CCB debts were received by YKBJ in “good faith”, YKBJ would suffer “severe financial hardship” if the FTB or CCB debt (as relevant) was not waived and if the FTB or CCB payment (as relevant) was made in respect of YKBJ’s eligibility for family assistance for a period or event that occurs in an income year and the FTB or CCB debt (as relevant) is raised after the end of the next income year after the one in which the eligibility period or event occurs: see s 97(2) and (3) of the FAAA.
Waiver due to “special circumstances”
Section 1237AAD of the SSA and s 101 of the FAAA provide that the Secretary “may” waive the right to recover all or part of a debt if the Secretary is satisfied that:
(i)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 social security law (in the case of s 1237AAD of the SSA) or the family assistance law (in the case of s 101 of the FAAA); and
(ii)there are “special circumstances” (other than financial hardship alone) that make it desirable to waive the debt; and
(iii)it is more appropriate to waive than to write off the debt or part of the debt.
The Tribunal accepts, based on the evidence, that YKBJ (or Mr YKBJ) did not knowingly make a false representation or statement to Centrelink or fail or omit to comply with a provision of the social security or family assistance law in the Relevant Period. At issue is whether “special circumstances” (other than financial hardship alone) exist in YKBJ’s case that made it desirable to waive her PP, FTB and/or CCB debts.
The expression “special circumstances” has been considered extensively by the Federal courts and Tribunal in the social security and family assistance law context. Broadly, it has been held that for circumstances to constitute “special circumstances” they must be circumstances which are “unusual, uncommon or exceptional,” “markedly different from the usual run of cases,” “special” or “out of the ordinary” and they include “events which would render the (strict application of the rule in question) unfair or inappropriate:” see for example, Re Ivocic and Director General of Social Services [1981] AATA 57 at [45]; Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3 per Toohey J; Beadle and Director General of Social Security (1985) 60 ALR 225 at 228 as per Bowen CJ, Fisher and Lockhart JJ; Groth and Secretary, Department of Social Security (1995) 40 ALD 541 at 545 per Kiefel J; Dranichnikov v Centrelink [2003] 75 ALD 134 at [66] per Hill J; Angelakos and Secretary Department of Employment and Workplace Relations [2007] FCA 25 at [33] and Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114 at [80]. Circumstances might be “special”, although they apply to more than one person or class of persons, provided they are not of universal application (for example, they are a common or universal characteristic of social security recipients): see Fischer v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs (2010) 185 FCR 52 at [65].
The SSAT made the following findings in relation to YKBJ's circumstances:
29.The Tribunal then considered [YKBJ's] circumstances. She has 5 children aged 2, 7, 9, 10 and 12 years. The youngest child has coeliac disease and [YKBJ] has a specialist's appointment for him in the near future. They have approximately $200,000 equity in their house, which they estimate is valued at $700,000. [YKBJ] works as a school chaplain and is enrolled in one unit of a human services course at Edith Cowan University. A substantial amount of [YKBJ's] income is used to pay for child care. She has no extended family support. Mr [YKBJ] is working locally and his base salary is approximately $102,000 per annum. The family have sold one car so they can manage better on their reduced income.
30.Mr [YKBJ] and [YKBJ] argued Centrelink's errors (in not applying information provided for family assistance purposes to the income support payment) should be considered as a factor which contributed to a finding of special circumstances.
YKBJ made similar verbal and written submissions before this Tribunal. In the “Statement of Facts and Contentions of the Applicant”, dated 22 October 2014 (YKBJ’s Statement), YKBJ states (at [84]):
The Applicant submits to the Tribunal that it could be considered “unfair, unintended or unjust” that a significant portion of FTB and CCB debt is not waived, even though all reporting requirements and obligations have been met, the payments were received in good faith and the sole reason for the overpayment of these benefits was the erroneous receipt of an income support payment for which the Commonwealth is contended to be solely at fault.
In YKBJ’s Statement, YKBJ states (at [82]) that she accepts that there is nothing in her “own personal circumstances that is sufficiently unusual or out of the ordinary to amount to special circumstances” and, (at [90]), that she has “been repaying the combined debts at a rate of $20 per fortnight (T15, p208) and has the capacity to continue doing so until all the outstanding debts are repaid.”
In the Relevant Period, YKBJ has had the benefit of a total of $84,630.96 in social security and family assistance payments to which she was not entitled, being a period in which she and Mr YKBJ had a relatively high combined income. By her own admission. YKBJ has, from 7 April 2014, been repaying her PP, FTB and CTB debts at a rate of $20 per fortnight and, with other repayments already made, the total outstanding balance (as at 8 July 2014) is $55,012.28. In such circumstances, there is no injustice in requiring YKBJ to continue to repay her outstanding PP, FTB and CCB debts to Centrelink.
The Tribunal finds that there is nothing in YKBJ's circumstances (either presently or in the Relevant Period) that is sufficiently unusual or out of the ordinary to amount to “special circumstances”, making it desirable to waive her PP, FTB and CCB debts. That is, there is nothing sufficiently “unusual, uncommon or exceptional”, “markedly different”, “special” or “out of the ordinary” in YKBJ’ circumstances that render them “special circumstances” for the purposes of s 1237 AAD of the SSA or s 101 of the FAAA, as relevant: refer to the cases in paragraph 57 above.
DECISION
For the above reasons, the Tribunal affirms the SSAT Decision.
I certify that the preceding 63 (sixty three) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh
(Sgd) T Freeman...........
Associate
Dated 4 February 2015
Date of hearing 29 January 2014 Representative for the Applicant Mr YKBJ (YKBJ’s husband) Representative for the Respondent Ms A Ladhams Solicitors for the Respondent Australian Government Solicitor
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