1. The Tribunal agrees with the three propositions as outlined by the Respondent in relation to special circumstances. First, there was continuing administrative error by the Department throughout the period and the Respondent and her husband suffer from ill health and financial stress, no doubt aggravated by this error.
2. It also agrees with the Applicant that all circumstances must be taken into account and that it is to be expected that almost all recipients of the DSP will be likely to suffer from a degree of personal ill health and financial hardship. It also strongly supports the proposition that there is an important public interest in safeguarding the integrity of the social security system itself and the public revenues attached thereto.
3. It parts company somewhat on the question of the extent to which financial hardship must be "severe". In the authority for that proposition quoted by the Applicant (Skinner) the Tribunal was discussing the meaning of the term "severe financial hardship" as it appears in section 1236(1C) of the SS Act which relates to debt write offs and the assessment of the capacity of the debtor to repay the debt. The term is not used in the waiver provisions of section 1237AAD. That section should be read as instructing decision-makers that financial hardship alone is not sufficient to establish special circumstances but equally that financial hardship may be taken into account as part of the "constellation" (Hales) of factors within the "broad discretion" (Hogan) for consideration.
4. In its own submission to the Tribunal[76] the Applicant asked it to take judicial note of the recent finding of the Australian Bureau of Statistics that the average household income for 2020 is $116,584 before tax which, the Tribunal understands is above the current gross salary of the household of some $99,000 per annum. That figure itself is generally consistent with the income estimates for the financial years 2015/16; 2016/17 and 2017/18 which were recorded by the ARO.[77]
5. The Tribunal is aware that the discretion in this area is "not lightly to be enlivened",[78] that at its core is the element of something being "out of the ordinary course"[79], but notes that a finding of special circumstances does not require factors which are "extremely unusual, uncommon or exceptional".[80]
6. In seeking to determine whether the circumstances of this Respondent establish special circumstances, the Tribunal has taken the following into consideration

(i) Keifel J's comment in Groth[81] that 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. The administrative errors on the part of the Department from an initial failure to act on advice provided through to repeated incorrect statements in notifications to the Respondent passes muster with the Tribunal as "unintended" and probably also "unfair" and "unjust" in its impact on the Respondent.

(ii) The severity of the psychological conditions suffered by the Respondent which, although showing signs of improvement, still evoke a negative prognosis from her medical practitioners all of whom attest that placing her under further stress (such as the burden of major debt) would so impact on her endogenous mental health conditions as to cause and end to such progress or trigger a serious relapse. There is ample judicial authority supporting the proposition that current and future health challenges to Respondents are legitimately considered as being within the constellation of factors for consideration as special circumstances.[82]

(iii) The additional burdens faced by the Respondent and her husband in terms of coping with (and affording the care for) their physical health conditions, primarily those associated with dental care taken together with the financial hardships, both present and reasonably prospective, which they face. The Tribunal also notes the extent to which Mr Fletcher is labouring under the burden of fears (which of course may not necessarily be well founded but which are no less real for all that) about his continued employment and the management of arrears of mortgage payments to the bank.

(iv) The extent to which the errors made by the Department have themselves, been contributory factors in creating unfair and unintended consequences for the Respondent and her husband. What is of course "special", although not necessarily "unique", is that there has been a degree of administrative error by the Department and the Tribunal accepts that this has contributed to placing the Respondent under additional strain and further impacting on her mental health because she has had to deal with the consequences of such an error.

1. Based upon the above, the Tribunal has come to the conclusion that special circumstances have been established in this case and that some forgiveness of the various debts should be considered in the light of that finding.
2. In relation to the DSP debt, there are three elements in the waiver provision of section 1237AAD of the SS Act. The Applicant has, itself, acknowledged that the first element ("knowingly") does not act as a barrier to the Respondent's claim for waiver, and in relation to the second element the Tribunal has found that "special circumstances" exist.
3. The third element is the discretion to decide whether it is more appropriate for a debt to be waived than to be written off (section 1237AAD(c)). Debts written off (section 1236) are not extinguished. They may be reversed and recovery proceedings may be instituted at some later stage where circumstances change as discussed above.[83]
4. Debts which are waived under section 1237AAD are taken to have been eliminated such that they cannot be restored at some time in the future.
5. The prospect of a significant change in the Respondent's circumstances appear limited in respect to her ongoing health problems and mental health issues, compounded by the continuing stress placed upon her husband and the challenges of meeting both potential significant medical expenses and financial responsibilities.
6. As such, it would be more appropriate to waive, rather than write off, the debt in this case.
7. The position of the FBT debts are somewhat different. The AAT1 found:

[30] With respect to the family tax benefits debts, which arise directly from the disability support pension error, section 97 of the (FA) Administration Act applies. For the most part, this section is the same as section 1237AAD of the (SS) Act. This section is different with respect to the time when the debt was raised. It says that, if the debt is raised in the year following the year in which the payments were made, the debt can be waived only if its recovery would cause severe financial hardship.

[31] The family tax benefits debts cover the 2015/16, 2016/17 and 2017/18 tax years. They were all raised on 6 November 2018. That is to say, they were raised within the 12 months following the 2016/17 and 2017/18 years. The limitation does not apply to the 2015/16 year.[84]

1. This line of reasoning led the AAT1 to determine that the FTB debt for the 2015/2016 financial year should be waived, relating it back to its finding that the initial DSP debt arise from sole administrative error on the part of the Department. The AAT1 went on to find that the Respondent's claim for special circumstances, made under section 101 of the FA Administration Act could not be enlivened because of the "severe financial hardship" provisions of section 97.
2. However, this Tribunal has found that there was no sole administrative error but that special circumstances exist. This finding applies both to the DSP debt and the FTB debts. Both sections 1237AAD of the SS Act and section 101 of the FA Administration Act are enlivened and their requirements satisfied.

1. The decision under review is set aside and in substitution:
   1. the decision to cancel the Respondent's disability support pension is affirmed;
   2. the Respondent's disability support pension debt for the period 25 January 2011 to 6 November 2018 is waived in its entirety pursuant to section 1237AAD of the Social Security Act 1991 (Cth); and
   3. the Respondent's family tax benefit debts for the 2015/2016, 2016/2017 and 2017/2018 years are waved in their entirety pursuant to section 101 of A New Tax System (Family Assistance) (Administration) Act 1999 (Cth).

I certify that the preceding 139 (one hundred and thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

...............................[sgd].........................................

[1] Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645.

[2] Shi v Migration Agents Registration Authority [2008] HCA 31.

[3] SS Administration Act section 123C_._

[10] Tribunal documents at [993]. Also Respondent's further Submission by email of 17 January 2021.

[11] There is nothing to indicate that the Respondent was ever advised that a "reporting day" had been established for her.

[12] Tribunal documents at [62]-[107] especially at [103].

[15] Statement of Peter Fletcher (12 July 2020) at [56].

[17] Tribunal documents at [9] paragraph [26].

[19] Tribunal documents at [127] and [129].

[20] Tribunal documents at [129-130].

[21] Tribunal documents at [1104] (Citation not in original). Again there is no explanation of the origin of this erroneous figure.

[24] The dates of these pay variations are set out in Tribunal documents at [128].

[31] SS Act sections 98, 117, 1064.

[33] Respondent's Statement of Facts, Issues and Contentions at [32].

[34] Applicant's SFIC at 9(c) and email advice of 17 January 2021.

[35] [2017] AATA 1810.

[36] Albeit they referred to Parenting Payments not DSP payments.

[39] Respondent's SFIC at [82]-[83].

[40] [2021] AATA 10.

[41] Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Walsh [2008] AATA 75; Secretary, Department of Employment and Workplace Relations and Taylor [2007] AATA 1377. Secretary, Department of Education, Employment and Workplace Relations and Brookes [2008] AATA 501; Fisher and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 410; Tabije and Secretary Department of Social Services [2014] AATA 778 (and the authorities cited therein at [64]); Secretary, Department of Social Services and Waqar (Social services second review) [2020] AATA 1493.

[43] [2001] AATA 72.

[45] Gerhardt and Department Employment, Education and Training [1996] AATA 173, [36]; Ryde Municipal Council v Macquarie University [1978] HCA 58; (1978) 23 ALR 41, 50-51.

[46] Ward and Secretary, Department of Family and Community Services [2000] AATA 212, [47].

[49] Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25; Jess v Scott [1986] FCA 365; (1986) 70 ALR 185, 193; Dranichnikov v Centrelink [2003] FCAFC 133, [66].

[50] Re Beadle and Director-General of Social Security (1984) 6 ALD 1, 3.

[51] Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114, [80].

[52] Secretary, Department of Social Security v Hales (1998) 82 FCR 154, 162.

[53] Skinner and Secretary, Department of Social Services (Social services second review) [2015] AATA 569, [48]; Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114, [80].

[54] At [8.78], citing Love and Secretary, Department of Social Services (Social services second review) [2016] AATA 8, [57]..

[55] Skinner and Secretary, Department of Social Services (Social services second review) [2015] AATA 569, [43].

[56] Hogan and Secretary, Department of Employment, Education and Workplace Relations [2011] AATA 162, [82].

[57] Secretary, Department of Social Security v Hales (1998) 82 FCR 154, 162.

[59] Re Gale and Secretary, Department of Employment, Education and Training (1996) 42 ALD 477, [44].

[60] Nehma and Department of Family and Community Services [1999] AATA 219, [76].

[61] Brittain and Secretary, Department of Family and Community Services [2000] AATA 161, [43].

[62] Ward v Secretay, Department of Family and Community Services [2000] AATA 212 at [47].

[63] Groth v Secretary, Department of Social Security [1995] FCA 1708 at [12].

[64] The following description of the Respondent's conditions and those of her husband are taken from report of Dr Paul Thiering (Psychiatrist) [Respondent Tender Bundle R7]; letters of Dr Michael Sanders (General Practitioner) and his report of 1 June 2020 [Respondent Tender Bundle at R 10,18, 20, 28 and 40]; Reports from Dr Mark Walker (Psychiatrist) [Respondent Tender Bundle R 13 and 39]; Report of Dr Alex Ganora (Pain Specialist) [Respondent Tender Bundle R21], Clinical notes Dr Graham Chaffey (General Practitioner with mental health qualifications) [Respondent Tender Bundle R5]. Both Dr Walker and Dr Sanders gave extensive oral evidence to the Tribunal.

[65] Respondent's Tender Bundle at R50 and R51.

[66] Respondent's Tender Bundle at R49, R50, R51.

[67] Respondent's SFIC at [109]. As at May 2020 the mortgage stood at $271,705 with arrears for $$2,931 - Respondent's SFIC at [110].

[68] Mr Fletcher produced supporting documentation by way of Australian Tax Office records at the hearing to confirm this figure.

[69] Respondent's Tender Bundle at R49.

[70] Respondent's Tender Bundle R46/R47.

[72] Skinner v Secretary, Department of Social Services [2015] AATA 569 at [29].

[73] Stubbs v Secretary, Department of Family and Community Services [2003] AATA 729 at [20].

[74] Skinner v Secretary, Department of Social Services [2015] AATA 569 at [48]- [49].

[75] Applicant's SFIC at [8.87] citations omitted.

[76] Applicant's Submission in email dated 17 January 2021.

[78] Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 53 ALD 277, 281.

[79] Minister for Community Services and Health v Chee Keong Thoo [1988] FCA 54; (1988) 78 ALR 307, 324.

[80] Secretary, Department of Social Services v Hodgson [1992] FCA 338; (1992) 27 ALD 309, 318.

[81] Groth v Secretary, Department of Social Security [1995] FCA 1708 at [12].

[82] Secretary, Department of Social Security v Thompson [1994] FCA 1477; (1994) 36 ALD 563, 568. Dean and Department of Education, Science and Training [2005] AATA 586, [60]. Perkich and Secretary, Department of Social Security (1997) 49 ALD 137, 151.