The Applicant's position has been to deny responsibility for the overpayment and to attribute sole blame to Centrelink. He points to:
An income and assets form dated 29 March 2017 where the value of his wife's superannuation with Australian Super of more than $82,000 was disclosed: T4, p 146. He contends that Centrelink was therefore on notice of his wife's superannuation, even though a staff member had crossed out these answers on the form. The information provided on this part of the form instructed to include his wife's superannuation only if she was over age pension age or claiming age pension. Since she was below age pension age in March 2017, the value of her superannuation did not count under the assets test: see subsection 9(1C) of the Act. I consider it was therefore appropriate that information about her superannuation was crossed out. This information was not then relevant and it would have been a breach of Privacy Principles for Centrelink to have retained and recorded this information for potential use should it become relevant in the future. I do not accept the Applicant's contention here.
He frequently spoke with Centrelink staff in the context of reporting his wife's casual income and was never told of the need to report his wife's superannuation. To follow the logic of this contention, Centrelink staff would have had to have been aware of her having superannuation and then flagging with the Applicant that he had to report it when it became assessable on his wife reaching age pension age. I do not accept the Applicant's contention here; there was no obligation on Centrelink's staff to alert him as suggested.
The various notices Centrelink sent him relevant to the debt period were too general in their terms to inform him of any obligation to report his wife's superannuation. This contention requires closer consideration and will be dealt with below.
Centrelink's computer system should have included a flag about his wife's superannuation needing to be taken into account from 6 September 2018 so that he could have been specifically informed of this beforehand. Despite this contention having some superficial attraction, it would have involved Centrelink obtaining and recording private information of an individual without this being required, in breach of privacy legislation Centrelink was obliged to comply with. Again, I do not accept the Applicant's contention here.
Centrelink commonly sends people receiving social security payments notices which include recipient notification obligations. It is useful to consider two of the slightly different types of notices sent to the Applicant before and during the debt period.
The first notice is dated 29 November 2017; it required the Applicant to tell Centrelink if he or his wife had, or were likely to have, any changes of circumstances included in a long list of potential changes to income or assets. In relation to changes to assets, it obliged the Applicant to advise if "the value of your assets or financial investments changes by more than $2,000." The Secretary's submission is that, once the Applicant's wife turned age pension age on 6 September 2018, the value of her superannuation became assessable under the assets test so that the value of the couple's combined assessable assets increased on that day. It followed the Applicant was obliged to tell Centrelink about this; he failed to do so and this was the real cause of the excess pension payments made to him during the debt period. I do not accept this submission. There is nothing on the face of the general obligation as framed which, in terms, referred to or required the Applicant to advise Centrelink about his wife's superannuation once it became assessable under the assets test. I consider it goes beyond what can reasonably be expected of a recipient of such a notice that they should understand, or be taken to understand, the different treatment of amounts in superannuation under the assets test, depending on whether or not the owner of the superannuation asset has reached age pension age. None of the content of the notice detailed this differing treatment. In those circumstances, I do not accept that the Applicant was required to tell Centrelink about his wife's superannuation on and from 6 September 2018 by reason of this particular notification obligation. The notice also required that Centrelink be told if the couple "get money from superannuation". There is no evidence they did since the Applicant's wife's superannuation was not accessed when she turned age pension age.
However, that is not an end of the consideration of the notice of 29 November 2017. Fairly construed, it did require the Applicant to inform Centrelink if the value of the couple's assets or financial investments increased by more than $2,000. I observed at hearing that commonly available superannuation fund performance data indicated average increases from investment returns of 9.4% in 2018/19 and 18.0% in 2020/21. In the absence of an explanation in the notice about what the term "financial investments" meant, I consider that both the Applicant and his wife's superannuation constituted financial investments as that term is ordinarily understood (which is different to its meaning as a defined term in the Act). Their superannuation also constituted "assets" as that term is commonly understood. It is almost certain that the value of the couple's combined superannuation increased by more than $2,000 on a number of occasions during the debt period. In this respect, since the notice included no specific detail about the treatment of money in superannuation, I consider their superannuation was within the scope of the notice's requirements, notwithstanding that the Applicant's wife's superannuation did not become assessable until 6 September 2018. Had the Applicant complied with his obligation to inform Centrelink of requisite changes to the value of the couple's financial investments from September 2018, all or most of the overpayments would not have occurred.
Another notice dated 12 March 2018 detailed that Centrelink had assessed the couple's total combined assets at $697,645.62 and combined annual come at $20,652.22; the assets assessment did not include the Applicant's wife's superannuation. The notice contained a requirement that he was required to tell Centrelink, within 14 days, "if the value of you and your partner's combined assessable assets changes by $1,000 or more." Absent an explanation in this notice about what the term "assessable assets" meant, I consider the Applicant was required to inform Centrelink of changes to the value of the couple's combined assets, including their superannuation, for the reasons given above.
The analysis above also applies to various other notices sent to the Applicant during the debt period. The result is I am satisfied the Applicant failed to meet his notification obligations under various notices he received, both before and during the debt period. Had I not been so satisfied, I note that section 66A of the Social Security (Administration) Act 1999 (Administration Act) imposes a general obligation on those claiming or receiving social security payments to inform Centrelink, within 14 days, of the occurrence of any event or change of circumstances which might affect their payments. The Applicant's turning age pension age on 6 September 2018 so that her superannuation became assessable was an event or change of circumstances section 66A obliged him to tell Centrelink about. He did not do so. As might readily be understood, the Applicant considers the obligation under this provision to be unreasonable. In my view, this is an instance where ignorance of the law is no excuse. The Applicant's failure to notify Centrelink as required contributed to the overpayments he received during the debt period.
The Applicant's substantive case has been that recovery of any debt should be waived on the basis Centrelink was solely responsible for the debt and he received the overpayments in good faith. The Secretary concedes the good faith aspect. However, I have found that his failure to meet his obligations, both under various notices sent to him and under section 66A of the Administration Act, contributed to the overpayments made to him. In those circumstances, it is not open to find sole administrative error by the Commonwealth. Waiver under section 1237A of the Act is not available.
[2]
At hearing, the Applicant accepted that his overall financial position is better than many who rely on social security payments for their income. Based on a copy of a housing loan statement provided after the hearing, the couple owes just over $29,000 on their home loan and have more than $51,000 in available funds on this facility. He estimated their house was worth about $800,000 to $900,000. The Applicant's evidence was that the home loan payments were well in advance and he makes withdrawals to fund his usual expenses. He owes more than $5,000 on a credit card which has a credit limit of $16,000. He has more than $700,000 in his personal superannuation account but is very reluctant to withdraw money from this fund; he would have to withdraw all of his funds which he does not wish to do. He is concerned about what might go wrong in the future. He mentioned having health issues requiring investigation and that he and his wife are not on good terms. They used joint funds to buy a new car for his wife in late 2019 but he drives a very old car himself.
I am not persuaded that the Applicant's overall circumstances are special in the context of considering waiver under section 1237AAD of the Act. Whilst there has been no repayment to date, he has ready access to funds to be able to repay any debt. I find that any debt amount is to be repaid.
[3]
I am satisfied that the Applicant has been overpaid during the debt period and that the total amount of any overpayment constitutes a recoverable debt to the Commonwealth. I do not accept that the approach adopted in calculating the couple's combined assessable assets during the debt period is appropriate. The matter will be remitted to the Secretary with directions concerning the assessment of the Applicant's wife's superannuation and her car. As to the superannuation, I consider it appropriate that the Secretary obtain information as to the balance of her Australian Super superannuation account at the end of each month from August 2018 to February 2022, with each monthly balance amount to apply for the following month. So, for example, for the first part of the debt period, her monthly superannuation balance as at 31 August 2018 is to apply for September 2018, the balance as at 30 September 2018 is to apply for October 2018 and so on.
In relation to the approach to the Applicant's wife's car and related funds used for its purchase, the value of the car and the related reduction in the couple's savings, if any, is to be assessed from 21 December 2019. The Secretary should require the Applicant to provide appropriate evidence of the source of the funds used to fund the cheque for $23,500 referred to previously. Should some or all of this amount have come from advance payments on their home loan, since the value of the home is not assessable as an asset, any reduction in the level of available funds against the home loan will not affect their assessable asset position. There should also be consideration given to any reasonable allowance for depreciation of the car's value in the debt period, noting that supply constraints during the COVID-19 pandemic period resulted in increased resale values of used vehicles generally, compared with the pre-pandemic position.
It is open to the Applicant to satisfy the Secretary, with appropriate evidence, that the $10,000 borrowed from their daughter or any funds withdrawn from the home loan used to purchase the car were subsequently repaid from the couple's assessable funds in the debt period. Should such evidence be provided, the Secretary is to take this into account in calculating the value of the couple's assessable assets in the debt period.
[4]
The Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration in accordance with the orders and recommendations set out in paragraphs 20 and 21 of these reasons for decision. The recalculated debt is to be repaid by the Applicant.
Legislation Cited (3)
Security (Administration) Act 1999
Security Act 1991
Review Tribunal (Consequential and Transitional Provisions No. [1) Act 2024
Cases Cited (1)
DQGR and Secretary, Department of Social Services (Social security second review) [2025] ARTA 1297 (10 April 2025)