1. Ms NBTL has raised a number of matters in relation to which she seeks review, including as noted in her 14 March 2025 application for second review already noted. Further, in her 7 July 2025 submissions (Exhibit A3), Ms NBTL states as follows:

This application rather, respectfully requests the Tribunal undertake merits review that accounts for:

• Procedural fairness violations (including lack of opportunity to present evidence).
• Disregard for holistic of cumulative assessment of my circumstances from 2018 onward,
• Material administrative failures with real-world consequences for myself and my child.

1. Ms NBTL confirmed at hearing that her dispute in relation to the compensation charge is about whether the discretion under section 1184K of the Act should be exercised.
2. I acknowledge that there are a number of background and other circumstances of understandable importance to Ms NBTL, including as noted in the 7 July 2025 submissions and other correspondence, which are not relevant to the issues in relation to this application. I have confined the evidence and submissions addressed in these Reasons to only that relevant to the issues before the Tribunal in relation to this application, that is, the application of a compensation preclusion period and resulting charge and whether the section 1184K discretion may be exercised.

1. The statutory provisions relevant to this review are contained in the Social Security Act 1991 (the Act).
2. I also had regard to the Social Security Guide[2] (the Guide) where relevant. As recognised by the Federal Court in MDXJ v Secretary, Department of Social Services [2020] FCA 1767:

The part which a governmental policy should ordinarily play in the determinations of the Tribunal is a matter for the Tribunal to determine, in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions, but balanced against the ideal of justice in the individual case (Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20: (2010) 182 FCR 115 at [43]). Further, it is well-established that the Tribunal must make the correct or preferable decision in each case on the material before it and that the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642-643 per Brennan J). The important matter is compliance with the terms of the relevant statute itself Minster for Home Affairs v G [2019] FCAFC 79; (2019) 266 FCR 69.

1. The issues that arise for determination in relation to this application are:

(a) Is Ms NBTL subject to a lump sum preclusion period and resulting charge?

(b) Are there special circumstances in Ms NBTL's case so that it is appropriate to treat the compensation payment, or part of it, as not having been made?

(c) Can any resulting debt to the Commonwealth be written off or waived?

Issue 1 - Is Ms NBTL subject to a lump sum preclusion period and resulting charge?

1. As noted in section 4.13.2.60 of the Guide, and as referred to in the Respondent's submissions,[3] the Act includes a statutory scheme whereby if a person receives compensation containing a component for past or future loss of income, then they must live off that compensation for a period of time (called a lump sum preclusion period) depending upon the amount of compensation received and they cannot be paid social security payments (called compensation affected payments) during this preclusion period. Where social security payments have already been paid in respect of that period, they are usually required to be repaid.
2. Subsection 1169(1) of the Act provides that if a person claims or receives a compensation affected payment (which includes jobseeker payment) and has also received a lump sum compensation payment, then the compensation affected payment is not payable in relation to any days in the lump sum preclusion period. The purpose of the provisions is to ensure that a person is not paid once via compensation from a liable party who pays the person for lost earnings and/or lost earning capacity and paid again by the community through the social security system. As noted by the Respondent, reference to the underlying principles in relation to these provisions has also been referred to in previous cases including in Massoud and Secretary, Department of Social Services [2017] AATA 1366 at [15] citing Secretary, Department of Social Security and Winterbotham [1990] AARTA 808 at [19].
3. Section 1170 of the Act sets out the method of calculating the preclusion period and includes consideration of the 'compensation part of a lump sum compensation payment'.
4. Subsections 17(3) and (4) of the Act describe how the compensation part of a lump sum compensation payment is worked out. Under these provisions, where a claim is settled by consent, the compensation part is 50% of the lump sum payment less any periodic payments.
5. In her 7 July 2025 submissions, Ms NBTL submits that the 50% rule must be specifically applied and is not automatic and that it requires proper assessment of her circumstances. In this regard, Ms NBTL seems to be relying upon section 4.13.7 of the Guide, which she cites, where it states, 'generally only 50% of a periodic compensation payment is assessed as income'. It is not clear to which version of the Guide Ms NBTL refers. There is currently no section 4.13.7 in the current Guide. However, consistent with what Ms NBTL has submitted, section 4.13.2.30 of the current Guide and earlier versions of the Guide includes and included as follows:

In order to calculate the lump sum preclusion period, the compensation part of a lump sum payment for the same compensable event must be determined. The 50% rule deems half the lump sum payment as being the compensation part in ALL cases where:

• the lump sum payment is received as SETTLEMENT of a claim, including as a consent judgement, as an interim payment, or a redemption of periodic payments, AND
• all or part of the payment is for:
  • lost earnings, OR
  • lost capacity to earn.

Act reference: SSAct section 17(3) Compensation part of a lump sum

Policy reference: SS Guide 4.13.2.60 Lump Sum Preclusion Period - General

A lump sum compensation payment that includes economic loss due to personal injury, may be decided by a court or tribunal, it may be arbitrated, or it may be agreed by settlement between the parties. Settlement is the most common way that lump sum compensation payments are decided.

The manner in which the matter is decided can affect when the lump sum is deemed to have been received. It can also affect the amount used to calculate the compensation preclusion period, the compensation part of the lump sum, and whether the 50% rule is to be applied.

1. As can be seen, both the version of the Guide to which Ms NBTL refers, and the current version of the Guide, recognise that the 50% rule is not always applied. The legislation provides for circumstances in which the 50% rule may not apply, and includes, for example, where a person has become liable to repay an amount of the compensation payment. However, where the payment is made in a settlement of a claim which has been settled by consent, paragraph 17(3)(a) of the Act requires that the 50% rule applies. It is not disputed that in Ms NBTL's case, the payment was made in settlement of a claim which was settled by consent. It follows that the 50% rule must apply. These is no discretion that may be exercised.
2. Consistent with the Respondent's submissions,[4] the Federal Court in both Secretary, Department of Social Security v Banks [1990] FCA 317; (1990) 20 ALD 19 and Secretary, Department of Family and Community Services v Chamberlain [2002] FCA 67; (2002) 68 ALD 357 confirms that proper consideration of the relevant person's circumstances is required, relevant to consideration of section 1184K of the Act (which I will canvass later in these Reasons) rather than relevant to the 50% rule. This is consistent with Ms NBTL's submissions.
3. The Release, Discharge and Indemnity dated 20 November 2023[5] between Ms NBTL and the insurer in relation to her claim shows that the claim was settled for a total of $79,896. A letter from the insurer's solicitors to Centrelink dated 23 November 2023[6] includes that the settlement included an allowance for economic loss.
4. Applying the formula in section 1170 of the Act, the applicable compensation preclusion period calculation is therefore as follows:

50% of $79,896/$1,198.70[7] = 33.32610 weeks rounded down to 33 weeks.

1. Pursuant to subsection 1170(3) of the Act, the compensation preclusion period in Ms NBTL's circumstances begins on the day on which the associated loss of earnings or capacity to earn began, that is, in Ms NBTL's case, the date of the accident, 12 May 2022. Pursuant to paragraph 1170(1)(b) of the Act, the compensation period ends at the end of the number of weeks calculated after the first day of the compensation preclusion period, that is, 33 weeks after 12 May 2022, being 28 December 2022.
2. The amount recoverable pursuant to section 1184A of the Act is the lesser of the amounts described in that section. In Ms NBTL's case, the lowest amount is the total of all compensation affected payments she received for any day within the lump sum preclusion period. There is no entitlement to compensation affected payments, including jobseeker payments, during that period. Ms NBTL only began receiving jobseeker payment from 27 August 2022, which fell within but after the start of the preclusion period. The total she received between 27 August 2022 and 28 December 2022 was $6,489.85. A notice for that amount was therefore issued to the insurer pursuant to section 1184 of the Act, with that amount recovered from the insurer.
3. It follows and I find that Ms NBTL is subject to a lump sum preclusion period from 12 May 2022 to 28 December 2022 and a corresponding charge of $6,489.85 in relation to jobseeker payments received by Ms NBTL between 27 August 2022 and 28 December 2022.

Issue 2 - Are there special circumstances in Ms NBTL's case so that it is appropriate to treat the compensation payment, or part of it, as not having been made?

1. Pursuant to section 1184K of the Act, there is discretion to disregard the whole or part of a compensation payment and thus reduce or remove a compensation preclusion period if appropriate to do so in the special circumstances of the case.
2. Ms NBTL's position is that the combination of her financial hardship and other circumstances are such that it should be accepted that there are special circumstances that make it appropriate to exercise the discretion found in section 1184K of the Act.
3. The Respondent's position is that it is not appropriate to treat the whole or part of the compensation lump sum as not having been made because Ms NBTL received $35,118.73 (net) in damages, the amount of the charge was fully recovered, the lump sum compensation preclusion period has been served (passed) and there is no injustice in the law operating as intended to prevent receipt of jobseeker payment and compensation for the same period. Further, the Respondent submitted that Ms NBTL is not in severe financial hardship.[8]
4. "Special circumstances", as required for the application of section 1184K of the Act, is not defined in the Act. However, the term has been extensively considered by courts and tribunals. The views of the Administrative Appeals Tribunal in Re Ivovic and Director-General of Social Services [1981] AATA 57; (1981) 3 ALN N95 relating to special circumstances were quoted with approval by the Federal Court in Secretary, Department of Social Services v Hulls (1991) AAR 414. Here it was said that the word "special" is intended to allow a decision maker the fullest opportunity to consider the particular circumstances of each case. However, it was also said that the exercise of the discretion should not frustrate the aims of the compensation provisions.
5. In Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541 and Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25 (Angelakos), the Federal Court indicated that for special circumstances to exist there would need to be something which distinguishes a case from the usual or ordinary case. This would occur were one to conclude that something unfair, unintended or unjust had occurred. Further, in Dranichnikov and Centrelink [2003] FCAFC 133, the Court stated that for special circumstances to be considered, they need to be 'unusual, uncommon, or exceptional', markedly different from the usual run of cases, distinguishable from the ordinary and have a particular quality of unusualness; and, further, they need to be considered in the statutory context in which they appear.
6. Previous decisions in relation to section 1184K of the Act make it clear that immediate financial hardship is not of itself a special circumstance, although it may be a component of special circumstances - see Hajar and Secretary, Department of Social Security [1988] AATA 787; (1988) 47 SSR 614 where the Tribunal said:

Financial hardship has been considered as a possible component of special circumstances in a number of decisions. It is clear, however, that standing by itself, it would not amount to a "special circumstance" (Re Beadle 6 ALSD 1 at 4). Further the financial circumstances must be more than straitened. They must be "exceptional" (Re Colaiacolo Decision 2109 24 April 1985 at paragraph 19).

1. The Guide at section 4.13.4.10 acknowledges the purpose of the compensation recovery provisions, as I have already canvassed, and notes that the special circumstances provisions should not be used to override basic legislative intention. It is noted that there is usually not one factor which makes a situation unusual, unforeseen or exceptional, but a combination of factors applying to each individual, with a holistic view of an individual's circumstances to be given. It is suggested that special circumstances should generally NOT be applied where:
   • the person has sufficient liquid assets to support themselves, and their family if applicable, for the duration of the preclusion period
   • the person acquired realisable assets AFTER the person was advised of the preclusion period, and there is no impediment to the realisation of those assets
   • the person's periodic compensation payments are reduced due to the effects of taxation laws, and this is the only grounds for consideration
   • where the only special circumstance is the legal deduction from both a social security payment and a DVA payment
   • where the only special circumstance is the perceived unfairness of the 50% rule (Secretary, Department of Family and Community Services v Chamberlain (2002) FCA 67), or
   • if the sole factor is that the person or their partner's reason for receiving a CAP was different to the reason the compensation was paid.
2. The Guide at section 4.13.4.20 gives examples of factors that can be taken into account, including, of potential relevance to Ms NBTL's circumstances:

1. - Ill health that has a major bearing on the individual's circumstances.

Example: Unforeseen and unexpected medical expenses for the person or immediate family member or dependant, which results in financial self-support plans being thwarted.

1. - State of ill health should be more severe than the majority of DSP recipients.
2. - Injury that a person received compensation for cannot generally be regarded as a special circumstance.

1. - Has stress or some other personal circumstance influenced the person's emotional state to the point that it has become a significant factor in their behaviour, or on their health?
2. - Has the person been the subject of family and domestic violence?

1. - Where their emotional state is related to or resulted from the injury that the person received compensation for, it cannot generally be regarded as a special circumstance.
2. - Where a person has been the subject of family and domestic violence affecting their emotional state, special circumstances may be granted.

1. - Has the person deliberately deprived themselves of their means of support or recklessly or inappropriately spent their lump sum?
2. - Did the person seek financial advice on the consequence of a particular course of action, and what was that advice?
3. - Does the person have realisable asset/s that could be used to solve their current financial dilemma, i.e. to maintain them for the remainder of the preclusion period?
4. - Does the realisation of the asset/s impact on other circumstances (e.g. medical evidence indicates that the loss of the asset/s would have an adverse impact on the person's health)?
5. - Does the current state of the market mean that the person cannot readily sell the asset?
6. - Is the person likely to face financial hardship in the near future?
7. - Is the person (especially if they have dependent children) at risk of becoming homeless in the near future?
8. - Has the person been financially deprived because of financial abuse and other forms of family and domestic violence?

1. - Financial circumstances need to be severe and worse than the majority of social security recipients.
2. - The value of all cash and realisable assets should be taken into account by comparing this with the fortnightly rate of pension.
3. Example: If a person has a car worth $20,000 and their JSP rate is $523.40 per fortnight, it could be seen that they have access to funds that would maintain them for the next 38 fortnights.
4. - It needs to be shown that there are truly compelling reasons why a person should not realise their assets.
5. Example: The person has separated since compensation settlement and children are living with ex-partner in family home, which was purchased with compensation funds.
6. - Where a person uses compensation proceeds to purchase a house or pay off the balance of a home loan, special circumstances would generally not be found.
7. Exception: The house has been substantially modified due to the person's disability and other similar suitable accommodation would be difficult to obtain.
8. - If a person only has $4,000 and a further 12 months preclusion period to serve, then special circumstances may be granted commencing at a future date if financial hardship is imminent.
9. - Generally, where people choose to wantonly/irresponsibly spend all of their compensation proceeds and do not set aside sufficient funds to meet their living costs during the preclusion period, decision makers should NOT find special circumstances exist unless there are truly compelling reasons to do so.
10. - Where a person has been the subject of family and domestic violence and financial abuse resulting in financial deprivation/hardship, special circumstances may be granted.

1. In her original request for review of the compensation preclusion provisions on 24 October 2024,[9] Ms NBTL's submissions included that she was struggling to meet unavoidable costs such as housing, utilities, food, healthcare (dental) and schooling, that she had significant financial obligations that she was required to meet placing a substantial burden on her limited resources and that she had recently had an adult ADHD diagnosis (inattentive) which had caused sudden and severe financial strain. She also noted that her parents' limitations to help her now due to their own current financial situation and her father's cancer treatment. She stated that she had to use the Home Energy Emergency Assistance Scheme to purchase a washing machine, that she was no longer in receipt of parenting payment and was unsuccessful in her application for carer assistance and was only able to access one care package per month from community centres. Ms NBTL also referred to, amongst other things, only receiving minimal child support for many years and her child's ongoing mental illness requiring increased care and support.
2. Ms NBTL provided a Statement of Financial Circumstances (SFC) dated 4 February 2025 to the Tribunal on first review.[10] In summary, the SFC includes the following information:
   • Ms NBTL was declared bankrupt on 11 October 2011 and discharged on 11 October 2014;
   • Ms NBTL received the lump sum compensation payment in November 2023;
   • She was in receipt of Centrelink payments of $1,691 per fortnight; and
   • Her fortnightly household expenditure included $900 rent, $78.50 telephone, $60 petrol, $47 public transport, $150 groceries with other debts including Afterpay of $770 (for her child's clothes and shoes), student help loan of $133,671 and austudy student loan of $13,694.43.
3. Ms NBTL gave evidence as to her current circumstances at hearing before me, including as regards changes to her financial circumstances since completion of the SFC. The circumstances she relies upon in relation to her submissions regarding section 1184K include, but are not limited to, the following:

(a) she had been on long-term parenting payment whilst studying; > > (b) she is impacted by a declared mental illness which is documented with Centrelink back to 1994; > > (c) she is the sole parent of her child (who is now aged 15), the mandated primary parent under Federal and Family Court orders; > > (d) at the end of 2022, her child was going through serious psychosis and also at the time of the accident and time of settlement had a number of issues impacting them; > > (e) her financial situation is severe and is now impacted even further by her father's cancer diagnosis and treatment; > > (f) she has had to use the Home Energy Emergency Assistance Scheme to buy a washing machine; > > (g) she is no longer in receipt of parenting payment and her application for carer assistance was deleted without further inquiry; > > (h) the community centre which provides assistance to her is only able to provide one care package per family per month; > > (i) jobseeker payment and family tax benefit are her sole sources of income other than approximately $480 per month child support she now receives; > > (j) her rent has recently increased, with a resulting increase in the bond of $500 which she has been unable to pay; > > (k) she can only afford third-party insurance on her car; > > (l) she was previously having money deducted from her Centrelink payments and that was keeping her electricity bill down, however something went wrong with that and it is up to a $1,000 bill now; > > (m) when her austudy debt was raised, it stopped her access to advance payments and she had to reduce a number of the automatic deductions she had set up towards bills; > > (n) her expenses still include as set out in the SFC with some increases; > > (o) she buys her groceries from a budget grocer, Fishes and Loaves, and ALDI, but sometimes she just runs out of money; > > (p) the week prior to the hearing, Optus were going to disconnect her phone because she hadn't paid the $200 bill. She explained she needed her phone for the hearing and they let her pay half of the bill so she could keep the phone connected for the hearing; > > (q) she has medical and pharmacy expenses for both her and her child; > > (r) her child was referred out of a public school to a speciality school and she should be paying $275 per term but she is very behind with that - she currently has a $1,000 bill to the school; > > (s) she has an outstanding debt to the Australian Institute of Professional Counselling, separate to the HELP debt, of approximately $4,000; > > (t) the Afterpay debt of $770 noted in her SFC has now been zeroed: the student loan and HELP debts still remain; > > (u) she paid a number of outstanding debts (including education debts, school fees, chemist, medical and dental bills) from the compensation monies, including rental arrears. She also bought and registered a second-hand car to replace a damaged vehicle. She also bought her child a good computer which they needed for studying part-time at school and part-time at home. She paid her parents back $2,000, which included for groceries they had assisted her with after the car accident; > > (v) she has not been able to afford ongoing physiotherapy and psychological support (including CBT therapy recommended for her) to progress her health; > > (w) both she and her child have been diagnosed with ADHD (and ASD). Her diagnosis came about after her child was diagnosed with anxiety, depression, ADHD and attention disorder;[11] > > (x) her child has gender dysphoria and a lot of things associated with that; > > (y) her child was released from the Queensland Children's Hospital's acute mental illness ward in December 2022 and has continuing issues and deserves help, and she cannot afford to pay for it; > > (z) in response to a query from the Respondent, Ms NBTL said that despite discussions with Centrelink about her possibly having access to superannuation on the basis of financial hardship, when she made enquiries, she would only have been able to have accessed $37 so she didn't do that - it wasn't worth it; > > (aa) she has limited family support due to her parents' own financial constraints and health issues; > > (bb) for many years she only received limited child support which has contributed to her ongoing financial hardship; and > > (cc) she has a permanent injury to her cervical spine because of the vehicle accident (in relation to which she received the compensation). > > 1. As regards consideration of Ms NBTL's ill health and special circumstances, the Respondent's submissions included that an injury in relation to which the person has been compensated cannot generally be regarded as a special circumstance and ill health must be more severe than most disability support pension recipients, of which there is no evidence in Ms NBTL's case. It was submitted that it is not unusual for someone who has been in receipt of compensation, or who is putatively in receipt of disability support pension, to have medical conditions of the nature impacting Ms NBTL.[12] The Respondent submitted that there is no evidence of Ms NBTL lodging a claim for disability support pension since being diagnosed with ADHD or for her personal injury despite being invited to do so. Overall, the Respondent submitted that Ms NBTL's ill health does not reach the threshold necessary to constitute special circumstances. > 2. As regards financial hardship, the Respondent submitted that financial hardship of itself does not amount to special circumstances and it must be more than strained - it must be exceptional and, further, needs to be severe and worse than most social security recipients.[13] > 3. The Respondent in their written submissions recognises the grounds of severe financial hardship advanced by Ms NBTL[14] but submitted that a rental arrears priority budget prepared by Ms NBNL[15] shows a fortnightly surplus showing strained financial circumstances rather than exceptional financial circumstances leading to hardship. Further, in written submissions, it was noted that contact with Ms NBTL had suggested that she previously had some money (although the amount was unquantified) in the bank. In oral submissions on behalf of the Respondent, it was recognised that based on Ms NBTL's evidence at hearing, any money she may have had in the bank is now gone and she has not been able to access superannuation. Further, at hearing, Ms NBTL explained that the rental arrears budget comprises two budgets and the one with the surplus doesn't include groceries at the more accurate amount of $300 to $350 per fortnight, which means that she does not have a surplus - in fact, it is the other way around and she is regularly relying on food packages from community organisations. The budgets were prepared with the assistance of Youth and Family Services and the budget with the surplus was prepared initially based on her figures but then it was realised that she had left out a lot of expenses and not allowed enough for groceries. When everything was allowed there was no surplus and the situation was, in fact, the opposite. > 4. As regards health conditions impacting Ms NBTL's child, it was submitted in oral submissions on behalf of the Respondent that, other than Ms NBTL's oral evidence, there is no contemporaneous documentary evidence post November 2022/December 2023 as to what those circumstances are now. > 5. As regards other matters such as sole parenting by Ms NBTL, the Respondent recognises that sole parenting is a situation that may cause financial strain but does not accept it is a circumstance that is unusual, uncommon or exceptional, particularly in circumstances where parenting orders were made by consent. As regards family law proceedings, the Respondent submitted that Ms NBTL's circumstances do not have the characteristics of previously considered matters where special circumstances are found on the basis of, for example, inability to realise assets until the family law proceedings are finalised or where there is liability incurred, or use of compensation payments required, to pay for legal costs of family law proceedings. > 6. I raised with the Respondent's representative at hearing that some of the previous cases referred to, in which special circumstances had been found to exist to exercise the section 1184K discretion, had similar particulars to Ms NBTL's circumstances. It was submitted that what distinguishes Ms NBTL's case from other cases where the discretion has been exercised is that there is no forward-facing preclusion period preventing Ms NBTL's access to income support payments. It was further submitted that the provisions have operated as intended - Ms NBTL received jobseeker payment to assist her when she was awaiting compensation. When she then received compensation, a charge applied to repay jobseeker payment for the period for which she was compensated and she now continues to be in receipt of income support payments. > 7. In closing submissions at hearing, Ms NBTL said that she is only seeking to have part of the compensation considered as having not been received. She said she is not being greedy or unreasonable; it would just help to have a recognition of the difficulty of her circumstances. She submitted that her circumstances should be considered special enough that it is appropriate to consider at least part of the compensation monies as not having been made which would in turn reduce the compensation charge. > 8. The Respondent's representative in response indicated that it had previously been understood that Ms NBTL was seeking that all of the compensation monies be disregarded, that they had no instructions in relation to a partial reduction, and that the Respondent's position remained that the entirety of the compensation should not be disregarded. > 9. I took into account all of Ms NBTL's circumstances. I am satisfied that Ms NBTL has not recklessly expended the compensation monies and rather felt compelled to repay previously incurred debts and to expend money on other understandable purchases such as a modest second‑hand vehicle and a computer for her child's education. I acknowledge the Respondent's submissions in relation to some deficiency in recent corroboratory documentary evidence as to Ms NBTL's and her child's circumstances, including medical and financial. However, I nonetheless have the benefit of Ms NBTL's sworn oral evidence as to her current circumstances, evidence which I accept in full. I found Ms NBTL's evidence as to both her financial and health circumstances, and her child's health and schooling circumstances, to be clear and consistent, neither exaggerated nor inconsistent with the documentary evidence available. I accept that recent corroboratory documentary evidence would be of assistance, including, for example, as to the current medical and associated challenges for Ms NBTL and her child. However, I also recognise the limited resources of Ms NBTL to access and provide such documentation. > 10. I have had regard to all matters, including all matters previously canvassed, particularly:

(a) the continuing strained financial position Ms NBTL is in and has been in for several years, including having to rely upon her parents, and more recently given her parents' own difficulties, placing more reliance on community support including for groceries and meals, forgoing recommended medical treatment for both her and her child, and being indebted for bond increases and in relation to her child's schooling. I am satisfied that notwithstanding being in receipt of income support, Ms NBTL is nevertheless in severe financial hardship including because of outstanding debts, reliance on community welfare and inability to afford recommended medical treatment for both her and her child; and

(b) Ms NBTL's and her child's physical and mental health and related issues. I am satisfied that, as is corroborated in part by documentary evidence, and based on Ms NBTL's oral evidence, that both she and her child are significantly impacted by a number of medical conditions in addition to those resulting from the accident.

1. I have also had regard to previous considerations of the issue of special circumstances by courts and tribunals, including various cases referred to in written submissions on behalf of the Respondent referred to at paragraphs 62, 74 and 82 of their SFIC.[16] As regards submissions in relation to the preclusion period having ended and the charge having already been recovered, a number of previous considerations by courts and tribunals suggest that it is nonetheless open to the Tribunal to exercise the discretion found in section 1184K of the Act.
2. The Administrative Appeals Tribunal in Topp and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 99 discussed the application of sections 1184K and 1237AAD and made the following observations at [52]:

... Moreover, since any debt can only arise if a preclusion period applies and, at least in the case of lump sum payments, a preclusion period will almost inevitably have a retrospective operation, the s 1184K discretion is necessarily concerned with the practical waiver of debt obligations. Indeed it may very well be that the initially apparent incongruence between the ss 1178 and 1180 pre-conditions (requiring the Secretary to have first given a debt notice) and the more general "automatic" debt provided for in s 1223(1), is deliberate. Its purpose is to confirm that the s 1184K discretion is intended to permit consideration of the "debt" issues that potentially arise from the existence of a preclusion period. It is also intended to confirm that the s 1184K discretion, unlike the waiver discretion conferred by s 1237AAD, may be exercised in "special circumstances" that are, amongst other things, constituted by financial hardship alone.

1. In Naim Haidar v Secretary, Department of Social Security [1998] FCA 994 (20 August 1998), the Federal Court held that the fact that the preclusion period had ended was irrelevant, and that the Tribunal had erred in law by considering such a factor, stating as follows:

It is true that by the time the matter came before the Tribunal the preclusion period claimed to apply had ended. But it is hard to see why that fact, if regarded as of any significance by the Tribunal, was relevant to its exercise of discretion. More importantly, however, I find it impossible to see how the fact that the Government would be required to pay a sum of money to Mr Haidar would be a relevant matter, certainly once the preclusion period had terminated, in deciding to exercise a discretion in a way not overly favourable to Mr Haidar. It is, of course, a consequence of the exercise of the discretion, particularly where the preclusion period applicable, but for the exercise of discretion, had expired and in circumstances where during that preclusion period no pension had been paid, that the Government would be required to pay money to a claimant. But it is hard to see how that would be relevant to the exercise of discretion" (at 157 ALR 365).

1. Examples of where the section 1884K discretion was exercised where a compensation charge had been recovered also include in the cases of Ward and Secretary, Department of Social Services (Social services second review) [2022] AATA 57 (18 January 2022) and Abbas and Secretary, Department of Employment and Workplace Relations [2007] AATA 1698 (27 August 2007).
2. None of the circumstances impacting Ms NBTL individually necessarily amount to special circumstances that make it appropriate to disregard the compensation monies received in whole or part. Nevertheless, I am satisfied that, taken cumulatively, there are special circumstances in Ms NBTL's case that make it appropriate to disregard so much of the compensation monies received that the consequential charge is reduced to $3,422.
3. I am satisfied that the exercise of the discretion in this manner balances the purpose of the compensation recovery provisions against the totality of the particular circumstances impacting Ms NBTL.

Issue 3: Can any resulting debt to the Commonwealth be written off or waived?

1. Paragraph 1222A(a) of the Act includes that an amount that has been paid by way of social security payment is a debt due to the Commonwealth if the Act expressly provides that it is. Section 1184G of the Act expressly provides that amounts specified in the notices issued under section 1184 of the Act are debts to the Commonwealth. It follows that the jobseeker payment paid to Ms NBTL during the preclusion period, as reduced to $3,422, as a consequence of the exercise of the section 1184K discretion I have found, is a debt to the Commonwealth.
2. Part 5.4 of the Act deals with non-recovery of debts. Section 1236 of the Act within that Part deals with the write off of a debt where, for example, the debtor's whereabouts are unknown, or they have no capacity to repay the debt. Section 1237A of the Act requires waiver of a debt that is caused solely by administrative error if other specified circumstances also apply.
3. Sections 1236 and 1237A have no application in Ms NBTL's circumstances.
4. Section 1237AAD of the Act provides 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.

1. Section 1237AAD of the Act first requires that the debt did not result wholly or partly from a false statement or misrepresentation or failing or omitting to comply with a provision of the legislation. The debt arose because of the subsequent settlement of Ms NBTL's compensation claim and did not result due to any of these reasons.
2. As regards whether there are "special circumstances" for the purposes of section 1237AAD of the Act, again, as in relation to section 1184K, that term is not defined in the legislation, however the starting position is that overpaid Commonwealth monies should generally be recovered and that there needs to be something that distinguishes the case from the ordinary or usual case for there to be special circumstances that make it desirable to waive: see Angelakos.
3. In the case of Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114, Deputy President Forgie noted that 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.

The integrity of the social security system relies on recovery of overpayments. In general, if a person has had the use and advantage of the money paid incorrectly to them and has the means to repay it without excessive hardship (e.g. through withholdings), they should do so. In such a case, special circumstances waiver would be appropriate only if the person's particular circumstances made it unjust for the general rule to apply. Their circumstances would need to distinguish their situation from that of the many other people who do have to repay their debts.

I have found that special circumstances exist in Ms NBTL's case as regards the section 1184K discretion with a resulting 50% reduction in the compensation charge, I am not additionally satisfied that those special circumstances make it desirable to waive the remaining debt, referrable to that charge, of $3,244. Section 1237AAD of the Act therefore does not apply.

The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that so much of the lump sum compensation monies paid to Ms NBTL are to be treated as not having been made as will result in the compensation charge being reduced to $3,244.

[1] Services Australia delivers social security payments and services and is overseen by the Department of Social Services. The Respondent is responsible for the overall management and administration of the Department of Social Security. Centrelink is the Government Agency that delivers social security payments and services as part of Services Australia and as the Agency with whom pension and benefit applicants/recipients interact, the Respondent may be variously referred to as Centrelink or the Respondent throughout these Reasons.

[2] Guides to Social Policy Law, Social Security Guide, Version 1.333 - Released 3 November 2025.

[3] Paragraph 33 of the Respondent's SFIC, Exhibit R3.

[12] Paragraphs 61, 62 and 67 of Exhibit R4.

[13] Secretary, Department of Social Security and Hill [1995] AATA 351; Re Stubbs and Secretary, Department of Family and Community Services [2003] AATA 729, Byrne and Secretary, Department of Social Services (Social services second review) [2021] AATA 4746 and Bolton, Secretary, Department of Social Security [1989] AATA 479.