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

Zilioli and Secretary, Department of Social Services (Social services second review) [2021] AATA 11 (14 January 2021)
Division:GENERAL DIVISION
File Number:2019/7162
Re:Rose-Marie Zilioli
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member S Barton
Date:14 January 2021
Place:Perth

The Reviewable Decision, being the AAT1 decision on 4 October 2019, is affirmed.
.......[Sgd].................................................................
Member S Barton
CATCHWORDS
SOCIAL SECURITY – Austudy – overpayment – waiver of debt – administrative error –
full-time study – special circumstances – write off debt – legally recoverable debt – notional entitlement – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 37
Social Security Act 1991 (Cth) – ss 568, 569, 569A, 569E, 569E(1)(a), 569E(1)(b), 569E(1)(c), 1223(1), 1236, 1236(1A), 1236(1B), 1236(1C), 1237, 1237(1), 1237A, 1237A(1), 1237AAC, 1237AAD, pt 2.11A div 1
Social Security (Administration) Act 1999 (Cth) – ss 68(2), 179
CASES
Beadle and Director-General of Social Security [1984] AATA 176
Callaghan and Secretary, Department of Social Security [1996] AATA 413
Davy and Secretary Department of Employment and Workplace Relations (2007) 94 ALD 693
DSGR and Secretary, Department of Education, Science and Technology [2007] AATA 1981
Secretary, Department of Family and Community Services and Jonauskas (2001) 65 ALD 553
Oberhardt v Secretary, Department of Education, Employment and Workplace Relations (2008) 174 FCR 157
Robinson and Secretary, Department of Social Services [2014] AATA 446
Secretary, Department of Social Security v Hales (1998) 82 FCR 154
Secretary, Department of Family and Community Services v Sekhon (2003) 73 ALD 41
Sekhon v Secretary, Department of Family and Community Services (2003) 132 FCR 126
REASONS FOR DECISION
Member S Barton
14 January 2021
BACKGROUND
The Application

The decision under review is a decision of the Social Services and Child Support Division (AAT1) of the Administrative Appeals Tribunal (the Tribunal), dated 4 October 2019, to set aside and substitute the decision of Centrelink (the Agency) to raise and recover an Austudy payment debt of $25,230.30 from the Applicant for the period 4 August 2017 to 7 May 2019 (the Relevant Period). The AAT1 set aside and substituted the Agency’s decision with the following decision:
(a)The Austudy debt for the period 4 August 2017 to 7 May 2019 is affirmed.
(b)A proportion of the debt, that being for the period 29 November 2018 to 7 May 2019 is to be waived due to special circumstances.
(c)The balance of the remaining debt is to be recovered in full.
FACTS
On 4 August 2017, the Applicant lodged an application for Austudy payments, based on her intention to undertake full-time study of an Advanced Diploma in Building Biology at the Australian College of Environmental Studies (the Institution), with her course commencing on 2 August 2017 and ending on 25 October 2019.
On 11 August 2017, the Agency advised the Applicant that her Austudy payments were based on her studying full-time and that she had a requirement to advise the Agency within 14 days if there were changes to her study load.
On 7 May 2019, the Agency commenced a review of the Applicant’s entitlement to the Austudy payments and on 13 May 2019, it was cancelled. On 14 May, the Applicant advised that she had not studied in 2017, had studied in 2018 and had not studied in 2019.
On 14 May 2019, the Agency determined the Applicant had been overpaid $25,230.30 (Original Decision), which was affirmed by an Authorised Review Officer (ARO) on
24 June 2019 (ARO Decision).
The ARO Decision was further reviewed by the AAT1 and was set aside and substituted. The AAT1 found a portion of the debt (being the debt for the period 29 November 2018 to 7 May 2019) was to be waived due to special circumstances.
The effect of this decision was to reduce the Applicant’s debt to $18,837.74. The Applicant is currently paying $93.27 per fortnight of her Jobseeker payments towards this debt.
On 4 November 2019, the Applicant applied for a review of the AAT1’s decision, in the General Division (AAT2) of the Tribunal. The AAT1 decision is the Reviewable Decision currently before the AAT2.
JURISDICTION
The application for review is made in accordance with s 179 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act). Therefore, the Tribunal is satisfied that it has jurisdiction to undertake a review of the merits of this application.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on Tuesday 13 October 2020. The Applicant appeared via telephone and was represented by Mr Tim Safe.
The Applicant gave oral evidence.
The Respondent was represented by Mr Kelvin Defranciscis, who also appeared via telephone.
The Tribunal has admitted the following documents into evidence:
(a)Applicant’s Statement of Facts, Issues and Contentions, received 18 June 2020 (Exhibit A1);
(b)Psychologist Report from Ms Jessica Vivien, registered psychologist, dated
2 June 2020 (Exhibit A2);
(c)Emails between the Applicant and her training institution from October 2017 to November 2018, received 18 June 2020 (Exhibit A3);
(d)Statement by Ms Sue Fraser (nee Zilioli) dated 18 September 2019 (Exhibit A4);
(e)St John of God Midland Sleep Service sleep study result, dated 6 February 2017 (Exhibit A5);
(f)Repayment for continuous positive airway pressure therapy (CPAP) machine, received 12 October 2020 (Exhibit A6);
(g)Letter from Ms Lynette Byrne, dated 12 October 2020 (Exhibit A7);
(h)Applicant’s Representative Submission by Mr Tim Safe, dated 12 October 2020, (Exhibit A8);
(i)Respondent’s Statement of Facts and Contentions, inclusive of annexes
A to G, dated 21 July 2020 (Exhibit R1); and
(j)Section 37 documents (T documents) numbered T1 to T29, comprising 225 pages, received 2 December 2019 (Exhibit R2).
ISSUES
The issues to be determined in this matter are:
(a)whether the Applicant was engaged in qualifying study in the Relevant Period;
(b)whether the Applicant was overpaid Austudy during the Relevant Period;
(c)whether the overpayment is a legally recoverable debt; and
(d)whether part or all of the Austudy debt should be waived or written off.
LEGISLATIVE FRAMEWORK
The relevant legislation is the Social Security Act1991 (Cth) (the Act) and the Administration Act.
Qualification for Austudy
Part 2.11A div 1 of the Act details the provisions relating to the qualification for Austudy payment. Section 568 of the Act provides the general rule that a person is qualified for Austudy payment in respect of a period if they satisfy the activity test and other requirements. According to s 569 of the Act, a person satisfies the activity test if, during the period in question, they are undertaking qualifying study.
Section 569A of the Act states:
For the purposes of this Part, a person is undertaking qualifying study if:
(a)the person:
(i)is enrolled in a course of education at an educational institution; or
(ii)was enrolled in the course and satisfies the Secretary that he or she intends, and has (since no longer being enrolled) always intended, to re‑enrol in the course when re‑enrolments in the course are next accepted; or
(iii)was enrolled in the course and satisfies the Secretary that he or she intends, and has (since no longer being enrolled) always intended, to enrol in another course of education (at the same or a different educational institution) when enrolments in the other course are next accepted; and
(b)the course in which the person is enrolled, or intends to enrol, is an approved course of education or study (see section 569B); and
(c)the person is a full‑time student or a concessional study‑load student in respect of that course (see sections 569C and 569D); and
(d)the person satisfies the progress rules (see sections 569G and 569H).
(Original emphasis.)
Section 569C of the Act provides that a person is a full-time student in respect of a course, if they are enrolled in the course for a particular study period, such as a semester, and are undertaking at least three quarters of the normal amount of full-time study in that course for that period. They are also a full-time student if they intend to enrol in the course for a study period and intend to undertake at least three quarters of the normal amount of full-time study in that period.
The normal amount of full-time study is defined in s 569E of the Act. For a course of study within the meaning of the Higher Education Support Act 2003 (Cth), with Commonwealth supported students enrolled in the course, the normal amount of full-time study is the
full-time student load for that particular course (s 569E(1)(a) of the Act).
For courses that do not fit the above description, the normal amount of full-time study is the amount of full-time study a full-time student should typically undertake with respect to that course as defined by that particular institution or, otherwise, an amount of full-time study equivalent to the average amount of full-time study required to complete the course in the minimum amount of time available (ss 569E(1)(b) and 569E(1)(c) of the Act).
Without limiting the above, the normal amount of full-time study, would be on an average in a study period, 20 contact hours per week (s 569E(2) of the Act).
Legally recoverable debt
Section 68(2) of the Administration Act provides:
(2)The Secretary may give a person to whom this subsection applies a notice that requires the person to do any or all of the following:
(a)inform the Department if:
(i) a specified event or change of circumstances occurs; or
(ii) the person becomes aware that a specified event or change of circumstances is likely to occur;
(b)give the Department one or more statements about a matter that might affect the payment to the person of the social security payment;
…
Section 1223(1) of the Act provides that if a social security payment is made and the person who obtains the benefit was not entitled for any reason to obtain that benefit,
then ‘the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment’. This allows overpayments of social security benefits to be recovered as a debt due to the Commonwealth.
Section 1236 of the Act provides for the possibility of writing off or delaying recovery of a debt for a period:
(1A)The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a)the debt is irrecoverable at law; or
(b)the debtor has no capacity to repay the debt; or
(c)the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d)it is not cost effective for the Commonwealth to take action to recover the debt.
(1B)For the purposes of paragraph (1A)(a), a debt is taken to be irrecoverable at law if, and only if:
(b)there is no proof of the debt capable of sustaining legal proceedings for its recovery; or
(c)the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or
(d)the debtor has died leaving no estate or insufficient funds in the debtor's estate to repay the debt.
Section 1237(1) of the Act states that the Secretary may waive the Commonwealth’s right to recover all or part of a debt in certain defined circumstances. Section 1237A(1) provides that:
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.
Therefore, the Act does not allow for waiver of part of a debt that was caused partly by administrative error and partly by other factors.
Section 1237(1) also enables the Secretary to waive a debt in ‘special circumstances’. Section 1237AAD of the Act states:
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.
(Notes omitted.)
CONSIDERATION
Was the Applicant engaged in qualifying study during the Relevant Period and if so, was the Applicant overpaid Austudy?
As detailed above, on 4 August 2017 the Applicant submitted an application for Austudy, stating that she was enrolled to complete an Advanced Diploma of Building Biology at the Institution. The course was intended to commence on 2 August 2017 and to conclude on 25 October 2019, and was intended to be completed on a full-time basis (Exhibit R2, p 44).
The Applicant met the requirements of s 569A of the Act, a point which is not in contention by the Respondent. This is accepted by the Tribunal.
The course was to involve a total of 1870 hours of course work, with an expectation of 20 hours per week (Exhibit R2, p 107). According to the Institution’s website:[1]
The Advanced Diploma of Building Biology (10194NAT) course is a two year full time (four year part time) course of 1,800 hours duration that consists of eleven subjects. Seven subjects are done online (you can start at any time) and the remaining four subjects are completed on campus, which is conducted over two one week workshops.
(Original emphasis.)
[1] ‘What is Building Biology?’ Australian College of Environmental Studies (Web Page) <>
On 11 August 2017, the Agency wrote to the Applicant advising her that she would be paid Austudy from 4 August 2017, based on her studying full-time. The correspondence further advised the Applicant that she must advise the Agency within 14 days if her study load changed or ceased.
Subsequent correspondence from the Agency also included the requirement to advise the Agency within 14 days if there were any events or changes in circumstances that affected her payments (Exhibit R2, p 55).
On 8 June 2018, the Applicant’s training institution completed an enrolment report for the Agency, confirming that the Applicant was enrolled in a course from 2 August 2017 to
2 August 2019. However, the report recorded the Applicant’s study load as unknown (Exhibit R2, p 62).
On 7 May 2019, the Agency commenced a review of the Applicant’s entitlement to Austudy. In a telephone conversation on 13 May 2019, the Applicant advised the Agency that she did not commence study until 2018, as her enrolment was delayed in 2017. The Applicant also advised that she had not studied in 2019 due to ‘difficult personal family circumstances’ (Exhibit R2, p 210).
On 13 May 2019, the Agency wrote to the Applicant to advise that her Austudy payments had been cancelled from 4 August 2017 (Exhibit R2, p 71).
The Applicant requested a review of the Original Decision. On 11 June 2019, the Applicant spoke to an ARO, where the ARO noted the following (Exhibit R2, p 89):
[The Applicant] stated that she spent 3 to 4 days a week from March, 2018 to assist her mother with caring for her father as he had dementia. He was then admitted to hospital then later into a home and it was a very stressful time for her caring for both of them. [The Applicant] stated that her father passed away in November 2018 and that her mother did not cope with the passing of her father. [The Applicant] then advised me that in November she was involved in a motor car accident and had to go through physiotherapy 3 times a week plus caring for her mother. [The Applicant] state [sic] that she was still trying to study and had completed some of her subjects and had provided a statement of attainment… [The Applicant] also advised me that her sister had an aneurysm.
The Applicant did not provide a transcript of her academic record; however, she did provide a statement of attainment for an ‘Electromagnetic Field Testing Technician Course’. This course had a duration of 360 hours, included three subjects, and was completed on
4 March 2019 (Exhibit R2, p 66).
On 24 June 2019, the ARO advised the Applicant that her review was unsuccessful, principally because they could not be satisfied during the Relevant Period that the Applicant was undertaking a full-time study load (Exhibit R2, p 87).
It is evident that during the Relevant Period, the Applicant was not undertaking full time study. The Applicant conceded during the hearing, at times reluctantly, that she did not complete the necessary units in the specified timeframe, as required of a full-time student. At the hearing, the Applicant stated (transcript, p 6):
And I’m sorry about Austudy and all of that but my parents became more important than my study. Because I knew they were on borrowed time. I still did my studies but it didn’t happen the way I planned and if the cards hadn’t kept setting it back I probably would have completed my first year and done the six units I should have done but it didn’t happen that way.
While stating that it had been her intent and strong desire to study full-time during
cross-examination at the hearing, the Applicant stated:
I understand I should have done six units in that year, but as the year turned out, I couldn’t do the six and that was out of my control because the college put all the dates back and I had no idea what was going to happen with Mum and Dad, because he was fine up until then. … But I did not complete the six units that I should have completed. I know I did not complete the six units I should have completed. … And that was out of my control.
The Applicant’s representative in his submission stated that (Exhibit A8):
The point to be made is that this course does not seem to be one where the full or part time status is determinable at any point of time by reference to actual current enrolment in a prescribed number of units, but rather an average over the two years.
While it may be true that the online aspects of the Applicant’s course afford a degree of flexibility, in the commencement of courses and in that, theoretically, a student may increase the number of online subjects studied over the course of the year, it is clear the Applicant understood that six subjects should be completed in a year.
Moreover, the course guide clearly states what constitutes a full-time workload (Exhibit R2, p100):
Part-time students are expected to complete a minimum of three subjects per year and complete the course within 4 years, whilst full time students complete six subjects per year and complete the course within two years.
Between August 2019 and March 2019, the Applicant completed three subjects. This does not meet the full-time studying requirements of s 569E of the Act, as dictated by the institution’s express requirements and the Applicant’s own admission, and evidenced by the Applicant’s statement of attainment.
The Applicant was not engaged in full-time study during the Relevant Period and therefore, under s 569A, was not eligible for Austudy payments she received.
Was the Applicant overpaid Austudy during the Relevant Period?
The Tribunal finds that the Applicant has been overpaid Austudy. It follows that under
s 1223(1) of the Act, as detailed above, a debt due to the Commonwealth is taken to have arisen when the Applicant obtained the benefit of payment that they were not entitled to.
Should part or all of the Austudy debt be waived or written off?
Write off

The question before the Tribunal is whether the circumstances of this matter would enliven ss 1236 or 1237. In considering this question, it is appropriate to consider some of the general principles in this regard, outlined by French J (as he then was) in Secretary, Department of Social Security v Hales (1998) 82 FCR 154, 155:
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, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the persons concerned. However, the confining of a recovery regime by rigid rules, particularly in this area of the law, is likely to be productive of unfair or harsh outcomes in some of the great variety of fact situations that can arise. There are provisions in the Act which recognise that reality. They relate to the writing off and the waiver of debts otherwise due to the Commonwealth. ... There is a tension in the construction of such provisions between the needs for certainty of application and flexibility of response to the situations that may arise from time to time.
As detailed above, s 1236(1A) of the Act provides that a debt may be written off if the debt is irrecoverable at law, if the debtor has no capacity to repay the debt, if the debtor’s whereabouts are unknown or if it is not cost effective for the Commonwealth to take action to recover the debt.
There is no evidence before the Tribunal that the debt is irrecoverable at law within the meaning of s 1236(1B). The debt could be recovered by deductions, including from social security payments and indeed is currently being recovered by fortnightly deductions from the Applicant’s Jobseeker payments. There is no evidence before the Tribunal that the current repayment plan is resulting in ‘severe financial hardship’ (s 1236(1C) of the Act).
While it may be the case that the Applicant is experiencing financial stress and has limited means, this is somewhat removed from a situation that might be reasonably categorised as severe financial hardship.
Therefore, there is no basis for the Tribunal to conclude that the debt could be written off under s 1236.
Waiver
Section 1237A of the Act states the debt must be waived if it is ‘attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment…’.
The meaning of the terms ‘solely’ and ‘sole administrative error’ have been addressed by both the Tribunal and the Federal Court. The word solely has its ordinary meaning, of being the only one or ones, exclusively or only.[2] In Secretary, Department of Family and Community Services v Sekhon (2003) 73 ALD 41, 47, Wilcox J stated:
For the subsection to have effect, the “proportion” of the debt – in this case, it is common ground, that would be the whole of it – must be “attributable solely” to administrative error. It is not enough that, in the absence of administrative error, the debt would not have arisen. Administrative error must be the sole cause, not merely one of multiple causes.
[2] Macquarie Dictionary (online at 22 December 2020) ‘solely’ (defs 1, 2).
In Sekhon v Secretary, Department of Family and Community Services (2003) 132 FCR 126, 135, Selway J stated on appeal:
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.
In accordance with s 68(2) of the Administration Act, the Applicant was required to notify the Agency to provide updates on her circumstances. This was made clear to the Applicant in her correspondence with the Agency (Exhibit R2, p 5, 55).
During the hearing, the Applicant stated that somewhere in the middle of 2018 she attempted to contact the agency ‘[t]o let them know that I am not coping but I didn’t get through … I wanted to ask them can I have some sort of support as a student on Austudy because I was not in a good space…’ (transcript, p 12). The Applicant did not ‘get through’ to the Agency and made no further attempt to do so.
In this matter, the debt is not the result of an administrative error that can be solely attributed to the Commonwealth. Therefore, there is no basis upon which the debt may be waived with regard to this provision.
Section 1237AAD of the Act provides for waiver of all or part of a debt due to special circumstances where:
(a)the debt did not wholly or partly result from the debtor knowingly:
(i)making a false representation; or
(ii)failing to comply with a provision of the Act; and
(b)there are special circumstances other than financial hardship alone; and
(c)it is more appropriate to waive than write off the debt or part of the debt.
The meaning of the word ‘knowingly’ has been the subject of consideration across a number of jurisdictions. The Respondent drew the Tribunal’s attention to Deputy President Forgie in Callaghan and Secretary, Department of Social Security [1996] AATA 413, who stated:
There is nothing in section 1237AAD 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. That 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.
Deputy President Forgie returned to the subject of ‘knowingly’ in Secretary, Department of Family and Community Services and Jonauskas (2001) 65 ALD 553, 572 [73], noting that ‘knowingly’, for the purposes of the Act, ‘is a deliberate choice and means actual knowledge’.
There is no evidence before the Tribunal that could lead it to conclude that the Applicant knowingly made false representations or statements.
The question then turns to ‘special circumstances’. As the Respondent notes, there is an extensive body of case law that has considered this term. It is not necessary to canvass all of those decisions; however it is worth highlighting some key decisions which have guided subsequent deliberations of the Tribunal.
In Beadle and Director-General of Social Security [1984] AATA 176 at [12]-[13], the Tribunal made the following observations:
12.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 upon 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.
13.The question must be asked…, what is the context in which circumstances are to be adjudged special or not special.
Deputy President Forgie expanded on the concept of special circumstances in Davy and Secretary of Employment and Workplace Relations (2007) 94 ALD 693, 715–716 [80]:
The “special circumstances” are not merely directed to the person’s own circumstances. Rather, they are directed to those that are “special circumstances ... that make it desirable to waive”. That necessarily requires a consideration of the person’s individual circumstances but also a consideration of the general administration of the social security system. Waiver of the debt would mean that Mr Davy would have had the benefit of part of his DSP in circumstances in which he was not entitled to it. ... He has had the benefit of the money and there is no injustice in requiring him to repay the money of which he has had the benefit but not the entitlement.
It is clear from her submission to the Tribunal that 2018 was a trying year for the Applicant (Exhibit A1). In March 2018, her sister, father and, later, mother were hospitalised for various conditions. The Applicant assumed considerable caring duties, while attempting to balance her studies. In June, her father was admitted to the Dementia Unit at Sir Charles Gairdner Hospital and was later admitted to the Kimberley Aged Care Home before his death on 29 November 2018. That day, driving from the hospital to her home, the Applicant lost control of her vehicle, which then struck a tree and rolled over. On 20 December 2018, the Applicant was involved in another motor vehicle accident, which, she stated, resulted in her receiving several months of physiotherapy.
The Applicant also provided a letter from Ms Jessica Vivien, a registered psychologist, whom she first consulted in May 2020 (Exhibit A2). Ms Vivien states that the Applicant’s symptoms:
… strongly suggest a diagnosis of Post Traumatic Stress Disorder, and her description of her functioning from the time her sister and father became seriously ill, indicate she was suffering impairment because of this stress disorder at that point, and from then on.
While it is difficult to place too much weight on a retrospective assessment based on an account provided 18 months later, it is reasonable to accept that 2018 was a trying and difficult year and that the Applicant would have experienced considerable anxiety, stress and grief.
The Tribunal also acknowledges the Respondent’s comments at the hearing (transcript, p 25):
… we ask what is it about [the Applicant’s] current circumstances which distinguish it from the ordinary or usual case and we contend that there is a heightened level of misfortune and difficulty, health issues, financial issues, which are inherent in most of these debt cases which come before the tribunal. Inherently people are - even members of society that aren’t before the tribunal have health issues, have family members pass away, and these are all unfortunate but they don’t take the case into the realm of being unusual or uncommon.
Now, the Secretary of course, as [the Applicant] just pointed out, has a bar about these things set to standard or rather contend a standard and it’s not that special circumstances are some unattainable level of misfortune and hardship but that they must be beyond the usual difficulties and hardships expressed by the many battling members of our society and other social security recipients in similar positions.
The AAT1 reasoned that from the period 29 November 2018 to 7 May 2019, following the death of her father and the two motor vehicle accidents, there were special circumstances which would enable a waiver to apply.
The AAT1 also had regard to the Applicant’s financial circumstances, noting that she had no significant assets or savings and that she was living in a caravan (Exhibit R2, p 11). The Respondent accepts that it was reasonable to do so from 29 November 2018 (Exhibit R1).
The Tribunal also accepts that for this limited period of time, between 29 November 2018 and 7 May 2019, the threshold of ‘special circumstances’ were met. However, for the remainder of the period, her circumstances, hard and challenging though they may have been, do not meet the threshold of ‘special circumstances’.
The Applicant’s representative stated (Exhibit A8):
[The Applicant] was on NSA, transferred to Austudy and then back to NSA when the former was cancelled. Do we assume that there was nil entitlement to an income support payment in the intervening period?...
In terms of a Notional Entitlement, it is reasonable to infer that an alternative income support payment such as Special Benefit would have been payable and be included in consideration of the Applicant’s circumstances;
Section 1237AAC of the Act contains provisions that relate to the waiver of amounts equal to a notional entitlement to parenting payments. These provisions do not apply in this circumstance. However, the Tribunal has previously considered the option of offsetting a debt with a notional entitlement when considering special circumstances.
The Respondent noted Senior Member Handley’s comments in DSGR and Secretary, Department of Education, Science and Technology [2007] AATA 1981, [43]:
From my part, whilst I would not exclude the possibility of the circumstances of a person being so special that set off by notional entitlement could never be permitted, I would think that those circumstances would be unusual and set off by notional entitlement would be a relatively uncommon occurrence.
The concept of notional entitlement was subsequently addressed by Spender J in Oberhardt v Secretary, Department of Education, Employment and Workplace Relations (2008) 174 FCR 157, 163 and 170:
The term “notional entitlement” is not defined in the Social Security Act, although it is used in s 1237AAC. In essence, the term refers to an unclaimed benefit; a benefit which was not actually claimed by the person, but to which that person would have been entitled had they applied for it. In this case, the appellant began claiming a disability support pension on 7 July 2005. Although she cannot now, or at any time in the future receive payments for periods prior to that date, it is contended that the appellant would have been eligible for the payment throughout the period during which she was being overpaid (11 February 2005 – 7 July 2005). She therefore had, during that time, a “notional entitlement’ to the payment. …
It follows that, in my view, notional entitlement should not be excluded from the range of available relevant considerations in deciding whether there are “special circumstances” to waive a debt under s 1237AAD.
A ‘notional entitlement’ to another payment may be a consideration when considering the special circumstance.
In Robinson and Secretary, Department of Social Services [2014] AATA 446, Deputy President Hotop stated at [50] and [52]:
50.The arguable relevance of the “notional entitlement” issue to the exercise of the discretionary power conferred by s 1237AAD of the Act to waive the Commonwealth’s right to recover a debt seems to be that, if the debtor would have been entitled to a social security payment, other than the one actually received and whose receipt resulted in the debt, had they claimed it instead of the one actually claimed, the amount they would have received by way of that other social security payment might be set off against the amount of the debt, thus arguably rendering it appropriate to waive the whole or part (as appropriate) of the debt. Waiver of a debt in those circumstances would arguably be appropriate because, having regard to the abovementioned setting off, the Commonwealth would, in effect, not be financially disadvantaged thereby. …
52.For the purpose of considering the “notional entitlement” issue, the Tribunal will assume that, on 13 February 2012, the applicant claimed newstart allowance instead of austudy payment. It is, however, insufficient for present purposes merely to assume that the applicant claimed newstart allowance on 13 February 2012 because that assumption raises questions that must be answered in order to determine, for notional setting off purposes, the total amount of newstart allowance which the applicant would have received in the relevant period. These questions (which relate to the period for which the applicant would have been qualified for newstart allowance and the amount of newstart allowance that would have been paid to her) include:
•Given that the applicant was unemployed on 13 February 2012, for what period(s) would the applicant have been unemployed throughout the relevant period (that is, in the period up until 12 October 2012)?
•How much by way of income from either full-time or part-time employment (the Tribunal notes the applicant’s evidence that she presently works part time and earns $650−$700 per week, while in receipt of newstart allowance “rent support”) would the applicant have received during the relevant period?
•For what period(s) would the applicant have satisfied the “activity test” for the purposes of s 593(1)(b) of the Act, or be taken to have satisfied the “activity test” pursuant to s 603AA of the Act, during the relevant period?
•Assuming that the applicant entered into a “Newstart Employment Pathway Plan”, within the meaning of paras (c)−(f) of s 593(1) of the Act, for what period(s), while the plan was in force, would the applicant have been complying with the requirements in the plan?
The Respondent contends that (Exhibit R1):
it is not clear what other social security payment, if any the Applicant may have qualified for during the period she was in receipt of Austudy. There is insufficient evidence to establish that she would have been entitled to a carer payment or allowance, as it is unclear whether she was providing sufficient care to meet the qualification criteria. Similarly, the payment of Newstart allowance cannot be assumed, as it comes with activity test criteria such as actively seeking employment. There is no evidence that the Applicant would meet the requisite criteria.
When considering whether there are ‘special circumstances’, the Tribunal must ask whether the Applicant would have had an unclaimed benefit, which was not actually claimed, and to which she would have been entitled. The Applicant’s representative has speculated that she may be entitled to Newstart Allowance or a Special Benefit payment, however there is, as the Respondent makes clear, some uncertainty as to which payment and eligibility. The Tribunal cannot automatically assume that in the absence of an Austudy payment, the Applicant would have been eligible for another payment. This consideration must also be in the context of ‘unusual’ and ‘uncommon’ and the circumstances ‘being so special’. The Tribunal is not satisfied this is the case.
CONCLUSION
The Tribunal finds that the Applicant has been overpaid Austudy between 4 August 2017 and 28 November 2018. Notwithstanding, the hardship experienced by the Applicant, it is not open to the Tribunal to find that her situation in that period was sufficiently unique or unusual that it would reach the threshold of ‘special circumstances’, not least in that it would enable the Applicant to have the benefit of entitlement to which she was not entitled. The Tribunal finds that the Applicant’s circumstances do not warrant the application of
s 1237AAD for the period 4 August 2017 to 28 November 2018.The Tribunal finds that there were special circumstances for the period 29 November 2018 to 7 May 2019 which warrant the application of s 1237AAD of the Act.
DECISION
The Reviewable Decision, being the AAT1 decision on 4 October 2019, is affirmed.

I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Member Barton

.......[Sgd]..............................................................
Associate
Dated: 14 January 2021

Date of hearing: 13 October 2020

Applicant: Mr Tim Safe, Sussex Street Community Law Service

Respondent: Mr Kelvin Defranciscis, Services Australia

[2021] AATA 11

14 January 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Jurisdiction

Appeal

Procedural Fairness

Statutory Construction

Remedies

Standing

Date of hearing:	13 October 2020
Applicant:	Mr Tim Safe, Sussex Street Community Law Service
Respondent:	Mr Kelvin Defranciscis, Services Australia