SOCIAL SECURITY - Carer Payment - Carer Allowance - debt recovery - respite from caring - imprisonment of care receiver - capacity to repay a debt - administrative error not the sole cause - payments continued despite notification - notional entitlement to jobseeker payment - special circumstances - decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 201(1A) of the Social Security (Administration) Act 1999.

1. This is an application for review of a decision by Services Australia - Centrelink (Centrelink) dated 1 March 2025 to raise debts in respect of carer payment and carer allowance the applicant, Miss Ferguson, received in relation to [Mr A] between 24 May 2023 and 19 July 2023.
2. Miss Ferguson received carer payment and carer allowance in respect of [Mr A] from 15 October 2013.
3. This application and the debts that are the subject of this application arise from carer payment and carer allowance paid to Miss Ferguson after the 63 days of respite from caring provided for by the law had been taken, following [Mr A's] imprisonment on 22 March 2023. By 24 May 2023 more than 63 days respite has passed and Miss Ferguson was no longer entitled to receive carer payment or carer allowance. Miss Ferguson attempted to apply for jobseeker payment but the claim was not ultimately submitted. From 20 July 2023, Miss Ferguson recommenced caring for [Mr A], and was paid carer payment and carer allowance from that date.
4. On the basis that Miss Ferguson had used up her 63 days of respite care, she was determined by Centrelink not to be entitled to carer payment and carer allowance paid to her between 24 May 2023 and 19 July 2023. Centrelink raised a debt of $4,932.01 in respect of carer payment and a debt of $1,168.85 in respect of carer allowance. The hearing papers do not contain Centrelink's letters informing her of these debts.
5. On 26 July 2023, Miss Ferguson requested a review of the decisions to raise the debts (folio 125 of the hearing papers). It does not appear that this request was actioned by Centrelink. On 28 January 2025, Miss Ferguson requested a further review of the decisions to raise the debts (folio 145 of the hearing papers). On 1 March 2025, an authorised review officer of Centrelink provided their decision on Miss Ferguson's request for a review (folio 16). They decided not to change the decision on the grounds that Miss Ferguson was not entitled to receive carer payment and carer allowance while [Mr A] was in prison. Further, they decided that the debts could not be waived.
6. Miss Ferguson applied to the Administrative Review Tribunal (the Tribunal) for a review of Centrelink's decision on 13 March 2025. On 18 June 2025, the Tribunal conducted a hearing in this matter by MS Teams audio. Before the Tribunal were hearing papers supplied by Centrelink numbered 1 to 284 (the hearing papers). Miss Ferguson gave evidence on affirmation.
7. The Tribunal has had careful regard to all of the documents and evidence provided to it. Reference below is made only to the documents and evidence relevant to this decision.

1. Carer payment is an income support payment for people who provide constant care for a person with a disability or severe medical condition. Carer allowance is a supplementary payment for people who provide daily care and attention to a person with a disability or medical condition. The legislation relevant to carer payment and carer allowance and therefore this application is the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999.
2. The issues for consideration in this application are:
   • Was Miss Ferguson overpaid carer allowance and/or carer payment by Centrelink in the relevant period, therefore giving rise to debts? If so,
   • Should both or either of those debts be recovered, written off or waived (either in whole or in part)?

Issue 1: Was Miss Ferguson overpaid carer payment and carer allowance?

1. Qualification for carer payment in respect of a disabled adult is set out in section 198 of the Act. As regards carer allowance, where the carer and the person receiving care were not living together (as is the case here), qualification is set out in section 954A of the Act.
2. The Act allows for either the care giver and/or care receiver to spend some time apart by way of what is referred to as "respite". However, the total period of time in "respite" must be no more than 63 days in any given calendar year.[1]
3. The documents support and Miss Ferguson agrees that [Mr A] was imprisoned on 22 March 2023, and the Tribunal finds accordingly. Therefore, after 23 May 2023, the 63 days of "respite" had been taken, and Miss Ferguson was no longer entitled to be paid either carer payment or carer allowance. That means that any carer payment and carer allowance paid to Miss Ferguson after 24 May 2023 until she began caring for [Mr A] again was an overpayment. Miss Ferguson began caring for [Mr A] again on his release from prison, on 20 July 2023.
4. Pursuant to section 1223 of the Act, if a person receives a social security payment to which they were not entitled, the amount of the payment is a debt due to the Commonwealth by the person. The debt is taken to arise when the person obtains the benefit of the payment.
5. Between 24 May 2023 and 19 July 2023, Miss Ferguson was paid $4,932.01 in respect of carer payment and $1,168.85 in respect of carer allowance, all of which was an overpayment, therefore giving rise to debts in those amounts. The Tribunal has considered the debt calculations and is satisfied that they are correct. The Tribunal therefore finds that the amounts of $4,932.01 and $1,168.85 are debts due to Centrelink. As at 7 April 2025, the entire amount of the carer payment debt and $1,024.54 of the carer allowance debt remained outstanding (refer the debt information summaries at folios 39 and 43). Miss Ferguson told the Tribunal that she is currently repaying one debt (the Tribunal assumes the carer allowance debt) at $20 a fortnight.

Issue 2: Should the debts be recovered, written off or waived?

1. As a general principle, there is an expectation that, where a person has received more by way of payments from the government than the amounts to which they were entitled, those overpayments will be recovered in a way appropriate to the circumstances which led to the overpayments and the circumstances of the person concerned. Part 5.4 of Chapter 5 of the Act provides for certain circumstances in which a person may be relieved from the obligation to pay a debt, either temporarily by write off or permanently by waiver.

1. Section 1236 of the Act provides the discretion to temporarily write off a debt on certain grounds. The Tribunal has had particular regard to the ability to write off the debt where the applicant has no capacity to pay it.
2. A debtor is taken to have capacity to repay a debt if it can be repaid from the debtor's social security payments, unless recovery by those means would result in the debtor being in severe financial hardship.[2] In circumstances where Miss Ferguson is repaying at least one debt at $20 a fortnight, the Tribunal finds that it is not appropriate to exercise the discretion under section 1236 of the Act to write off some or all of the debts.

1. Section 1237A of the Act applies to that part of the debt attributable solely to an administrative error by the Commonwealth, where:
   • The debt was not raised within six weeks from the first payment that caused the debt.

• The debtor received in good faith the payment or payments that gave rise to that proportion of the debt.

1. On 22 March 2023, Centrelink first became aware that [Mr A] was imprisoned on 21 March 2023 (folio 119). On 22 March 2023, Centrelink wrote to Miss Ferguson asking her to contact it to discuss her carer payment (folio 181).
2. Centrelink's records show that Miss Ferguson began an application for jobseeker payment online on 6 April 2023 (folio 22) and on 11 April 2023 Miss Ferguson called Centrelink. Centrelink provided the Tribunal with the recording of that call (folio C1) and the Tribunal has listened to the call recording. Miss Ferguson clearly tells Centrelink that [Mr A] has been imprisoned, and the Centrelink officer notes that she has responded to Centrelink's letter dated 22 March 2023 within the required 14 days (in fact, it was just over the 14 days).
3. Therefore, from 11 April 2023 at the latest (but more likely 22 March 2023) Centrelink was aware that [Mr A] was incarcerated. It is unclear why Centrelink continued to pay Miss Ferguson carer payment and carer allowance after the 63-day respite period had elapsed given that knowledge. The Tribunal finds that Centrelink's continued payment to Miss Ferguson of carer payment and carer allowance after the 63-day respite period had elapsed was an administrative error on its part.
4. However, in order to qualify for waiver under section 1237A of the Act, the administrative error must be the sole cause of the debts. That means that the debts can only be attributable to the administrative error and if there is another cause, however minor, then the waiver is not available.[3]
5. The authorised review officer considered that Miss Ferguson contributed to the carer payment and carer allowance debts by failing to contact Centrelink after she received the 22 March 2023 letter (when she clearly did, as Centrelink's own call recording at folio C1 makes plain) and by not submitting her claim for jobseeker payment. Therefore, whilst there was an administrative error, the authorised review officer did not consider that it was the sole cause of the debts.
6. The Tribunal sees the force in the view that Centrelink's administrative error was not the sole cause of the debts.
7. Miss Ferguson was advised in the call on 11 April 2023 to upload a photo ID and a medical certificate in relation to her application for jobseeker payment. Centrelink states that on 20 April 2023 Miss Ferguson uploaded the required documents. The hearing papers suggest that the medical certificate was uploaded on 1 May 2023 (folio 34, record of uploading at folio 33). Centrelink states that it sent her an SMS on 21 April 2023 asking her to complete and submit her claim (folio 259). Centrelink states that it sent her a further SMS on 28 June 2023 (folio 276) and attempted to call her (refer the authorised review officer's letter dated 1 March 2025).
8. Miss Ferguson told the Tribunal that she had never submitted a claim online before and did not realise that she had anything else to do. She had thought, from her calls with Centrelink, that she had done what she needed to do and said that she told them that she did not want a debt. Miss Ferguson also told the Tribunal that, at the time, she was caring for both granddaughters and was also facing violence and abuse from her (now former) neighbours that was so bad that on more than one occasion the police had to remove her and her granddaughters to her daughter's house.
9. The Tribunal accepts that Miss Ferguson did not intentionally fail to finalise and upload her jobseeker application. However, had it been finalised, she would have been moved to jobseeker payment and would no longer have received carer payment and carer allowance. However unintentional on Miss Ferguson's part, her failure to complete her jobseeker payment application was another cause of the debts.
10. Therefore, the Tribunal is unable to find that the administrative error was the sole cause of the debts and therefore finds that waiver pursuant to section 1237A of the act is not available.

1. Section 1237AAD of the Act provides a discretionary power to waive some or all of the debt, where Centrelink (and therefore the Tribunal) is satisfied that:
   • the debt did not result wholly or partly from the debtor or another person knowingly:
     • making a false statement or a false representation; or
     • failing or omitting to comply with a provision of the social security law; and
   • there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
   • it is more appropriate to waive than to write off the debt or part of the debt.
2. The Tribunal has already found that it is not appropriate to write off the debts. The Tribunal is satisfied that Miss Ferguson did not knowingly make a false statement or representation or fail or omit to comply with social security law. On the contrary, she informed Centrelink that [Mr A] was incarcerated.
3. As the Tribunal has noted in other decisions, "special circumstances" is not defined in the legislation, other than to note that financial hardship alone will be insufficient. The case law and the Social Security Guide[4] anticipate that the circumstances of the particular case would make it unjust, unreasonable or inappropriate for the debt to be recovered. There must be circumstances, other than financial hardship, which distinguish the case from other similar cases, or which take the case "out of the ordinary".[5]
4. Whilst the Tribunal was unable to find that Centrelink's administrative error (which Centrelink has admitted making) was the sole cause of the debts and therefore has been unable to waive the debts for administrative error, it is open to the Tribunal to take the administrative error into account as a special circumstance.[6] The cases refer to there being:

something about the administrative error that makes it desirable to waive the debt. Often that will involve some unfairness or hardship to the person who received the payment if repayment were to be required.[7]

1. In Miss Ferguson's case, Centrelink knew [Mr A] was incarcerated, both from its own sources and from Miss Ferguson. It is entirely unclear why it continued to pay Miss Ferguson carer payment and carer allowance.
2. When Miss Ferguson was not entitled to receive carer payment and carer allowance, it is likely that she would have been entitled to jobseeker payment and she therefore had a "notional entitlement" to jobseeker payment. It is open to the Tribunal to take this notional entitlement into account as a special circumstance.[8]
3. As regards Miss Ferguson's financial circumstances, from the evidence Miss Ferguson gave to the Tribunal, her sole source of income is government benefits (carer payment, carer allowance and family tax benefit) and she receives around $1,600 a fortnight. Miss Ferguson has sole care of her 10-year-old granddaughter and shared with the Tribunal the difficult circumstances around her conception. Miss Ferguson pays rent of $652 a fortnight, electricity of $150 a fortnight, telephone of $13 a fortnight and $35 a fortnight for internet, which is needed for her granddaughter's schooling. Miss Ferguson spends between $600 to $640 a fortnight on food. They live in a remote area and so their main shopping is at the local [supermarket] which is very expensive. Miss Ferguson is on medication, and pays around $25 a month. She does not have a car and uses public transport. She does not have other debts such as credit card or Afterpay, and said that she cannot afford them as they are too expensive. Miss Ferguson told the Tribunal that she regularly goes into the red and has to draw on charities to assist her.
4. Miss Ferguson told the Tribunal that she suffers from chronic pain in her legs as a result of an accident to her back around six years ago, which occurred on her first day of work at a shopping centre. She also suffers from anxiety and depression and takes antidepressants. She weaned herself off them around three years ago but had to go back onto them due to violence from her neighbours, and she saw a psychologist. Miss Ferguson was able to have the neighbours removed with assistance from charities, including [Charity 1] who took the neighbours to court to have them evicted. Whilst the other residents in the block of apartments were impacted, she was the only one who took the abusive neighbours to court.
5. The Tribunal has paid particular attention, when considering whether there are special circumstances that make it appropriate to waive some or all of the debts, to the administrative error, the fact that Miss Ferguson did tell Centrelink that [Mr A] was incarcerated, Miss Ferguson's notional entitlement to jobseeker payment and her health issues. In all the circumstances, the Tribunal considers that there are in this matter special circumstances (other than financial hardship alone) that make it appropriate for the Tribunal to exercise its discretion to waive so much of the debts as are outstanding as at the date of this decision, pursuant to section 1237AAD of the Act.

The Tribunal sets aside the decision under review and in substitution decides that, whilst there are debts of $4,932.01 and $1,168.85, so much of those debts as remain unpaid as at the date of this decision are waived pursuant to section 1237AAD of the Social Security Act 1991.

[1] Section 198AC of the Act (carer payment), section 956 of the Act (carer allowance).

[2] Subsection 1236(1C) of the Act.

[3] Ward and SDFCS [2000] AATA 212, Gerhardt and DEET [1996] AATA 173.

[4] The Social Security Guide is part of the Guides to Social Policy Law, a collection of publications issued by the Australian Government and designed to assist decision makers administering social policy law. It is persuasive but has no legislative force. However, the Tribunal should take into account government policy as long as it is not inconsistent with the provisions and objects of the relevant legislation, Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179.

[5] Dranichnikov v Centrelink [2003] FAFC 133.

[6] See, for example, Tubic and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 13 and Re SDFHCSIA and Sarolea [2008] AATA 372.

[8] Oberhardt v SDEEWR [2008] FCA 1923.