The Applicant then updated his accommodation details via web services on 16 July 2010[10] and Centrelink accessed his record on 26 July 2010, requiring further information to process his low income card claim.[11]
On 8 October 2010 the Applicant lodged a claim for disability support pension.[12] On the same day Centrelink wrote to the Applicant advising that whilst his disability support pension claim was being assessed, he has been granted newstart allowance. Attached to this correspondence stating the same were reporting statements, including for the period 8 to 20 October 2010.[13]
On 12 October 2010 the Applicant contacted Centrelink in respect of his newstart allowance claim,[14] declaring that he had last worked on 7 October 2010. His claim was granted on 15 October 2010, with effect from 8 October 2010.[15]
There is no evidence before the Tribunal to substantiate the assertion that a newstart allowance claim was lodged prior to 8 October 2010. At its highest, the evidence is that the Applicant advised Centrelink on that day that he was experiencing difficulties in lodging an online claim but refused the offer to lodge a verbal application.[16] The next day the Applicant simply updated his Centrelink record via web service.[17]
As I have already outlined, subsection 11(1) of the Administration Act states that a person must make a claim in writing and lodge it. In the absence of any documentary evidence to substantiate the Applicant's assertion that he lodged a claim for newstart allowance on 16 July 2010, I am not satisfied that the Applicant did so. In reaching this conclusion I placed weight on the fact that the Applicant has provided differing accounts of his attempt to lodge his newstart allowance claim prior to 8 October 2010 and so concluded that it would be imprudent to accept his explanation without corroboration.
In any event, the ability to backdate to the date of enquiry contained in section 13 of the Act can only apply when Centrelink has given written acknowledgement to the person regarding the preliminary contact. There is no evidence that such a notice was issued to the Applicant. Thus, not being satisfied that he was given written notice acknowledging that Centrelink was contacted in relation to the making of a newstart allowance claim before 8 October 2010, the provisions allowing backdating of the pension outlined in section 13 of the Act cannot apply, even if the Applicant were able to establish he was suffering from a medical condition or had caring responsibilities, or it was not reasonably practicable for him to lodge the claim at an earlier date.
Furthermore, the medical evidence before me does not persuade me that the Applicant was prevented from lodging his claim earlier than 8 October 2010, due to medical condition having a significant adverse effect on his capacity to lodge a claim. Pain in his right hand aside, the evidence is such that he managed to continue to work during this same period.
I do note for completeness, that even if the Applicant had lodged an application for newstart allowance prior to 8 October 2010, the evidence indicates that he would not have been qualified for the payment because he was not unemployed prior to that date, as required by subparagraph 593(1)(a)(i) of the (then) Act.
The Applicant testified at hearing that prior to his workplace injury he was working only part-time and was also studying part-time. Therefore, he submitted, he was partly unemployed. He also asserts that his last day of work was 6 October 2010. However, he did confirm that he made a declaration, written in red, on his payslip for the fortnight commencing 27 September 2010, that his last day of work was 7 October 2010.[18] He also confirmed that he completed the Worker's Injury Claim Form dated 11 July 2012 in which he declared that his last day of work was 7 October 2010.[19] He also relied on the fact that he was in receipt of the low income card to demonstrate that he was unemployed prior to 8 October 2010.
After having the benefit of the Applicant's evidence, I am not satisfied that he was unemployed from July to 8 October 2010. =Instead, I prefer the documentary evidence, including the payslip for the fortnight commencing 27 September 2010 and the Worker's Injury Claim form, and so find that the Applicant's last day of work was Thursday 7 October 2010.[20] Further, I am not persuaded given the evidence before me that the discretion outlined in section 595 of the Act should be exercised.
The other provisions of the Act that might potentially allow the grant of newstart allowance to be backdated are summarised as follows:
Transfers between payments (section 12 of the Administration Act);
Claim within four weeks of childbirth (clause 10 of schedule 2 of the Administration Act);
Claim within five weeks of becoming incapacitated (clause 11 of schedule 2 of the Administration Act);
Claim within four weeks of the death of a partner (clause 12 of schedule 2 of the Administration Act); and
Claim within 14 days of claiming a disaster relief payment (clause 13 of schedule 2 of the Administration Act).
There is no evidence before me that any of the above provisions apply in the Applicant's case. Having said that, I do accept that the Applicant's testimony that his wife became pregnant in the first week of July 2010, and his eldest child was born 4 April 2011.
I could not identify any other provisions that might allow for the Applicant to be paid newstart allowance prior to 8 October 2010.
I conclude that the decision to pay the Applicant newstart allowance from 8 October 2010, and not an earlier date, is correct.
Again, for completeness, even if a provision of social security law did allow the Applicant to be paid newstart allowance prior to 8 October 2010, arrears of the allowance would not be payable. This is because the decision to grant him newstart allowance was made on 8 October 2010. The Applicant did not lodge a request for review of this decision until 3 April 2023.[21]
Subsection 109(2) of the Administration Act states that if notice is given informing a person of a decision, and more than 13 weeks after that notice, the person applies for a review of the decision and a favourable determination is made, the favourable determination takes effect on the day on which the application for review was made.
Therefore, no arrears of newstart allowance would be payable to the Applicant as his application for review of the original decision was made more than 12 years after granting him newstart allowance.
[2]
Does the Applicant have a compensation charge debt?
[3]
I find that from 8 October 2010 the Applicant was in receipt of newstart allowance from 8 October 2010 to 25 May 2012 and from 22 September 2012 to 22 March 2023 he was in receipt of disability support pension.
It is not in dispute that the Applicant first commenced receipt of periodic compensation payments from 26 May 2012, paid in arrears from 8 October 2010. I find accordingly.
I have already outlined that subsection 17(1) of the Act states that a compensation affected payment includes disability support pension and social security benefits, including newstart allowance. Therefore, the Applicant was in receipt of a compensation affected payment from 8 October 2010 to 22 March 2023.
I am also satisfied that the event, as defined in subsections 17(1) and 17(5A) of the Act, that gave rise to the Applicant's entitlement to periodic compensation payment occurred prior to 8 October 2010. Therefore, as the Applicant was not in receipt of a compensation affected payment to 8 October 2010, the rate of his compensation affected payment (that is, his newstart allowance and disability support pension) is reduced in accordance with subsection 1173(2) of the Act. That it, it is reduced by the daily rate of the compensation received. This is usually referred to as a dollar-for-dollar rate reduction.[22] I note that this aspect of the decision is not before me.
Therefore, having been in receipt of both periodic compensation payments and compensation affected payment, Centrelink correctly recalculated the Applicant's entitlement to newstart allowance and disability support pension during the period 8 October 2010 to 22 March 2023 and determined that he was overpaid the compensation affected payments during the relevant period.
[4]
I have carefully checked Centrelink's calculations in respect of the newstart allowance and disability support pension debts made by a complex assessment officer on 31 May 2024.[23] I accept that payments made by Centrelink that comprise these debts are reflected in the Applicant's bank statements during the same period.
I find based on the debt report dated 28 May 2024[24] that the Applicant was overpaid $199,622.49 from 8 October 2010 to 22 March 2023. I note that all but $16,299.77 has been recovered from these debts.[25]
I considered the Applicant's submissions regarding his Centrelink PAYG payment summaries indicating that he received less payments than Centrelink stated that he did during the relevant period.[26] Whilst I appreciate that this may have caused some confusion, the Applicant's arguments on this point have no merit. Not all payments made by Centrelink are reflected in a person's PAYG summaries. By way of example, payments such as economic support payments, cost of living payment, rent assistance[27], pharmaceutical allowance, language, literacy and numeracy supplements and energy assistance payments are not included in a person's PAYG summary.
I also note that Centrelink recovered a debt owed by the Applicant's wife that arose because his periodic compensation payments had an impact on the income support payments she received during the same period.[28]
[5]
Should all or part of the debts be waived or written off?
[6]
The debts arose because the Applicant received periodic compensation payments during the same period that he was in receipt of newstart allowance and disability support pension.
There is no evidence that the debts were caused by sole administrative error. Therefore, it follows that all or part of the debts cannot be waived pursuant to section 1237A of the Act.
All three of the requirements in section 1237AAD of the Act are cumulative; that is, all must be met for a waiver to be considered under this provision.
I first considered whether there are special circumstances in the Applicant's case that would warrant waiving all or part of the debts.
The term 'special circumstances' is not defined in the legislation. In the matter of BeadleandDirector-General of Social Security,[29] the Tribunal stated that the term is "incapable of precise or exhaustive definition" but "looks to circumstances that are unusual, uncommon or exceptional".[30] In the matter of Groth v Secretary Department of Social Security[31] the Federal Court stated that it requires something to distinguish a person's case from others, "to take it out of the usual or ordinary case" and "... It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary."[32]
The concept of special circumstances is broad. A constellation of factors, including financial circumstances, may fall within it. The express exclusion of financial hardship alone as a special circumstance is an indicator that it would otherwise be included. This gives some measure of the range of circumstances which will qualify as special. But as a matter of grammar and ordinary logic, the exclusion of financial hardship alone as a special circumstance does not mandate its inclusion in the range of matters constituting such circumstances for the purpose of enlivening the Secretary's discretion.
[8]
In Dranichnikov v Centrelink,[35] the Court noted that other cases which have considered analogous words have concluded that what was required are circumstances which distinguish the current case from the usual case, or those which are out of the ordinary.[36]
In Angelakos v Secretary, Department of Employment and Workplace Relations[37] Besanko J stated:[38]
[9]
... I also note that the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances. The danger is that the test will be overstated if the word 'exceptional' is emphasised. It was not the intention of Parliament to confine the exercise of the discretion to an exceptional case. There is less risk of overstatement if the words 'unusual' or 'uncommon' are emphasised. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case. It may not be easy to postulate the ordinary or usual case other than in quite general terms and, in doing so, close attention must be given to the particular statutory context.
[10]
In his statements to the Social Security and Child Support Division the Applicant referred to he and his family living in poor accommodation and his medical condition. In addition to his work related injuries he suffers from depression. He is medically qualified, but he is unable to work at all because of the workplace injury he sustained. He suffers from hypertension and diabetes.
Before me, the Applicant provided the following evidence regarding his circumstances during the relevant period and since. He continues to receive over $1,000 in periodic compensation payments per week. He does not dispute the Secretary's calculation that his gross annual compensation payments are $66,866. He is also in receipt of family tax benefit in respect of his children. He purchased a piece of land in October 2019 and intended to build a property but is now in a legal dispute with the builder. He confirmed that he received a $25,000 first home buyers grant. He and his family live in private rental. He confirmed that as at April 2023, he had $72,325.39[39] in a net saver account and $501,930.76[40] in a goal saver account.
Before me, the Applicant stated that his current bank balances total about $700,000. He also has about $20,000 AUD in a Bangladesh bank account, which he cannot transfer because of the monetary policy of the Bangladesh government. In addition to the remaining debt under review, he also has a tax debt of about $9,500. When asked to specify the financial consequences should he have to repay the debt under review, the Applicant stressed that this would reduce the available funds that will be applied to building the family home. He would also lose interest if he repaid the debt.
The Applicant reported that one of his two children lives with hearing loss and attends a special school. This child is in receipt of funding from the National Disability Insurance Scheme for speech therapy and occupational therapy. His wife is in receipt of carer payment, paid at a reduced rate because of his income. He also stressed that he has a spinal injury for which he receives no compensation. His other child is generally in good health, though does have occasional asthma.
After consideration of the relevant law and the Applicant's description of his circumstances, I am not persuaded that the circumstances outlined by him are sufficiently out of the ordinary as to constitute special circumstances. In reaching this conclusion, I gave significant weight to the fact that he has over $700,000 in savings. I am not persuaded that he or his family would suffer any hardship were he to repay so much of the debts under review that remains outstanding.
I next considered whether it is appropriate to write off the debts pursuant to subsection 1236(1A) of the Act.
I am satisfied that the debts are recoverable at law, the Applicant's whereabouts are known and it is cost effective for the Commonwealth to take action to recover the debt. Considering these matters, and the Applicant's current savings, I am satisfied that the Applicant has the capacity to repay so much of the debts that remain outstanding as of the day of hearing. Therefore, the debts are unable to be written off under section 1236 of the Act.
No other provisions in Part 5.4 of the Act are relevant to the Applicant's circumstances.
Therefore, the debts under review are recoverable by the Commonwealth.
[11]
[4] Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
[27] In this case, from the date of grant until the birth of the Applicant's first child. Thereafter, rent assistance was included in his family tax benefit.
[39] Exhibit 1, folio 2353, noting that his Netbank saver account indicates that this was the balance on 1 April 2023 and it reduced to $71,875.39 on 2 April 2023.
Legislation Cited (4)
Security (Administration) Act 1999
Review Tribunal Act 2024
Security Act 1991
Review Tribunal (Consequential and Transitional Provisions No.](/cgi-bin/viewdoc/au/legis/cth/num_act/artatpn1a2024807/index.html) [1) Act 2024
Cases Cited (5)
DKVQ and Secretary, Department of Social Services (Social security second review) [2025] ARTA 2636 (9 December 2025)
Beadle and Director-General of Social Security[1984] AATA 176