1. At the time the claimed parenting payment arose, the rate of parenting payment for a person who was partnered was calculated by section 1068B of the Social Security Act. Section 1068B-A1 noted that the rate of parenting payment is a daily rate, worked out by dividing the fortnightly rate by 14.
2. The income test in Module D provided the following method to apply the income test:

Step 1. Work out the amount of the person's ordinary income on a fortnightly basis.

Note: The amount of the person's ordinary income is affected by points 1068B‑D2 to 1068B‑D21.

Step 2. Work out the partner income free area using point 1068B‑D22.

Note: The partner income free area is the maximum amount of ordinary income the person's partner can have without affecting the person's rate.

Step 3. Use point 1068B‑D23 to work out the person's partner income excess.

Step 4. Use the person's partner income excess to work out the person's partner income reduction using point 1068B‑D24.

Step 5. Work out whether the person's ordinary income exceeds the person's ordinary income free area (see point 1068B‑D27).

Note: A person's ordinary income free area is the maximum amount of ordinary income the person can have without affecting the person's rate.

Step 6. If the person's ordinary income does not exceed the person's ordinary income free area, the person's ordinary income excess is nil.

Step 7. If the person's ordinary income exceeds the person's ordinary income free area, the person's ordinary income excess is the person's ordinary income less the person's ordinary income free area.

Step 8. Use the person's ordinary income excess to work out the person's ordinary income reduction using points 1068B‑D29 to 1068B‑D31.

Step 9. Add the person's ordinary income reduction and partner income reduction: the result is the person's income reduction referred to in step 5 of the method statement in point 1068B‑A2.

1. Point 1068B-D19 stated that, subject to points 1068B-D8 to 1068B-D18, a person's ordinary income was to be taken into account over such period, not exceeding 52 weeks, as the Secretary determined. The note to this section stated that this point, in conjunction with point 1068B-D20, enabled the Secretary to determine the person's fortnightly income that best represents the person's income situation.
2. Point 1068B-D20 then stated that, for the purposes of the module, the person's ordinary income for such a period was to be reduced to a fortnightly rate rounded to the nearest cent (rounding 0.5 cents downwards).
3. The person's ordinary income, referred to in the income test in Module D, is defined (as set out above) to be income that is not maintenance income or an exempt lump sum. "Income", also as set out above, refers to amounts earned, derived or received by a person.
4. For the period the Applicant was receiving parenting payment, the Applicant does not dispute that he was not reporting his wife's income to Centrelink. His evidence was that any overpayment is due to Centrelink error, on the basis that he hadn't been advised of his reporting requirements while receiving parenting payment and had given hard copies of his wife's payslips at the time of claim.
5. The Tribunal found, from the undisputed evidence before it, that the Applicant was paid parenting payment between 17 September 2016 and 14 February 2018 without his wife's income having been taken into account in determining his rate of payment. The Applicant's wife's earnings information for this period demonstrates ongoing fortnightly income throughout the period, of varying fortnightly amounts. As none of this income was taken into account in determining the Applicant's rate of parenting payment, the Tribunal accepted that the Applicant was overpaid parenting payment between 17 September 2016 and 14 February 2018.
6. The calculation of fortnightly rate of parenting payment does not specifically require consideration of when an income amount is "first" earned, derived or received. In submissions provided to the Tribunal, the Respondent has noted that the Applicant's wife's income is taken into account over such period, not exceeding 52 weeks, as the Secretary determines and that this provision provides "significant flexibility" to a decision maker to assess income in the way best represented by that person's situation.[5]
7. The Respondent submits that the Applicant's wife's income is most appropriately assessed consistently with how her income was assessed in relation to the newstart allowance debt, that is, based on amounts earned in each instalment period. The Tribunal notes that this approach is not only consistent with the approach to the newstart allowance overpayment, but is also consistent with the majority decision in Chaplin. Based on the calculations undertaken by the Respondent when using this approach, the Tribunal accepted that the Applicant was overpaid parenting payment totalling $15,243.36 in the period 17 September 2016 to 14 February 2018.
8. The Tribunal finds that the Applicant owes a debt to the Commonwealth in the amount of $15,243.36 under subsection 1223(1) of the Social Security Act.

Whether there is any reason the debts should not be recovered

1. Part 5.4 of the Social Security Act provides mandatory and discretionary provisions relating to non-recovery of social security debts. In considering these provisions, the Tribunal was mindful of the comments of the Federal Court in Secretary, Department of Social Security v Coralie Hales [1998] FCA 219, where the Court stated that:[6]

The taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to receive will be recovered, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the persons concerned. However, the confining of a recovery regime by rigid rules, particularly in this area of the law, is likely to be productive of unfair or harsh outcomes in some of the great variety of fact situations that can arise. There are provisions in the Act which recognise that reality. They relate to the writing off and the waiver of debts otherwise due to the Commonwealth.

1. The Tribunal considered the following non-recovery provisions, relevant to the circumstances before it.

1. Subsection 1236(1A) of the Social Security Act allows for write off of a debt for a period of time where the following requirements are met:

(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:

(b) the debtor has no capacity to repay the debt; or

(c) the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or

(d) it is not cost effective for the Commonwealth to take action to recover the debt.

1. Subsection 1236(1B) of the Social Security Act then provides that, for the purposes of paragraph (1A)(a), a debt is taken to be irrecoverable at law if, and only if:

(b) there is no proof of the debt capable of sustaining legal proceedings for its recovery; or

(c) the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or

(d) the debtor has died leaving no estate or insufficient funds in the debtor's estate to repay the debt.

1. Subsection 1236(1C) of the Social Security Act provides the circumstances in which a debtor is taken to have capacity to repay a debt and states that:

(1C) For the purposes of paragraph (1A)(b), if a debt is recoverable by means of:

(a) deductions from the debtor's social security payment; or

(b) deductions under section 84 of the A New Tax System (Family Assistance) (Administration) Act 1999; or

(c) setting off under section 84A of that Act;

the debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the debtor being in severe financial hardship.

1. The Tribunal is satisfied that the debts are recoverable at law, the Applicant's whereabouts are known and that it is cost effective for the Commonwealth to take action to recover the debts. The preconditions for write off under paragraphs 1236(1A)(a), (c) and (d) are not met.
2. As to whether the Applicant has the capacity to repay the debts, the Tribunal had regard to a summary of the family's budget, provided in an email prepared by the Applicant's wife on 30 August 2023. The budget states that the family's total annual expenses are $62,681.30, the Applicant's wife's annual income is $54,615.60 and the family receive family tax benefit totalling $7,680, leaving the family with an annual deficit of $1,385.70. The Tribunal noted some minor discretionary expenses in the budget, such as firearms, fishing and boating licences.
3. At the Tribunal hearing, the Applicant gave evidence that he had commenced work in 2024 and continues to be employed by the same employer. In response to observations that he had, during 2024, been earning $390 to $737 per week, he stated "could be". When asked about what his current income is, he did not respond directly but rather stated that it varies on the hours he does. When asked whether his income continued to be between $390 and $737 per week, he replied by stating it is "nothing to do with you".
4. The Tribunal notes that the household budget prepared by the Applicant's wife in August 2023 was not accurate at the time the Tribunal has made its decision in this matter, on the basis that the Applicant's employment circumstances have changed since that time. The Applicant was unwilling to provide any information to the Tribunal about his current income and, in these circumstances, the Tribunal did not accept that a repayment arrangement of the debts, at a reasonable fortnightly rate of repayment, would cause the Applicant severe financial hardship. The precondition for write off under paragraph 1236(1A)(b) is not met.
5. The Tribunal finds that the debts are unable to be written off for a period of time under section 1236 of the Social Security Act.

1. Section 1237A of the Social Security Act states that a debt must be waived in the following circumstances:

(1) Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.

Note: Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).

(1A) Subsection (1) only applies if:

(a) the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or

(b) if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;

1. In Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190, the Full Court of the Federal Court made the following observations about the requirement for sole administrative error (at [35]-[37]):[7]

The ordinary or usual interpretation of the phrase 'attributable solely to' is that it refers to the single or sole cause of the relevant act or event. The word 'attributable' means 'capable of being attributed'. It involves an objective assessment of causation. The words 'a debt attributable solely to an administrative error' can be paraphrased as meaning that the only cause that objectively can be ascribed to the relevant debt is an administrative error...

This is the meaning of the phrase which the primary judge purported to adopt and apply. He drew attention to the fact that the decision to issue the notice was a discretionary decision. This necessarily means that there was more involved in that decision than merely identifying that the pre-conditions for making it had been met. Although there was no evidence before either the Tribunal or the primary judge identifying the reasons for that discretionary decision, nevertheless the primary judge was correct to conclude that 'the giving of the notice was not itself an administrative error', or at least there was no evidence that it was. Implicit within this conclusion is an acceptance by the primary judge not only that the legal pre-conditions for the issue of the notice were present, but also that there was no administrative error in respect of the policy considerations involved in that discretionary decision...

Further, it is inappropriate to use a 'but for' test to determine a sole cause. A 'but for' test is a test to determine a case - it is not a test for determining the sole cause: see the comparison drawn by Callinan J between the 'but for' test and 'solely caused' in I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 192 ALR 1 at 51-52 [210]. Indeed, even as a test to determine a cause, it is too broad for some purposes such as to establish causation in tort: see Gummow and Kirby JJ in Tame v New South Wales [2002] HCA 35; (2002) 191 ALR 449 at 501 [211].

1. The Applicant agreed in his evidence at the hearing that he had received a number of Centrelink notices over the years. He gave evidence that he had been careful to read the notices sent to him and had understood the notices sent to him. He was taken during the hearing to a letter that had been sent to him, dated 11 May 2015, which was headed "Your Newstart Allowance". The letter set out the Applicant's rate of payment of newstart allowance and noted that information used for calculating his regular payment was $0.21.
2. On the second page of the letter, under the heading "What you must tell us", the following information was set out:

You must tell us within 14 days about events or changes in circumstances affecting your payment. A list of the events you need to report is shown below. If you get a Reporting Statement, report your earnings or changes in circumstances on your due date. If you do not get a Reporting Statement, you can tell us about any changes via self service (online or phone), in writing (fax or post), or by attending any of our service centres.

This is an information notice given under the social security law.

1. The second page of the letter also required the Applicant to advise Centrelink if any of the following changes happened or were likely to happen:
   • - you or your partner start paid work or any form of profession, trade, business or self employment

• - you or your partner start to receive or stop receiving income, your or your partner's income changes from the rate last notified or the income shown above is incorrect

1. The Applicant was sent further correspondence by Centrelink during the newstart allowance debt period. This included an Income Statement sent to him on 7 July 2015, which did not reflect his wife's income, and letters dated 1 March 2016, 11 March 2016, 17 March 2016 and 5 April 2016, all of which reflected that the information being used for calculating his regular payment was total fortnightly income of $0.21.
2. The letter dated 11 May 2015 was discussed in some detail with the Applicant at the hearing. The Applicant gave evidence that he had "probably flicked over it" when asked if he had read it. As to whether he had understood he needed to notify Centrelink of changes in circumstances, the Applicant stated, "when applicable". When asked where the notice indicated this, the Applicant stated it was common sense. When asked if he knew he needed to advise of changes to his partner's income within 14 days, the Applicant responded that they had payslips given to them, so yes. As to the "information used for calculating the payment" being $0.21, the Applicant responded by stating that he and his wife had told Centrelink about her income.
3. As to the other notices sent to the Applicant during the newstart allowance debt period, the Applicant's evidence about these was that he had asked Centrelink employees about this, and his wife had, and they had been advised there was a glitch in the system. The Applicant did not accept there was no record of him having been advised that in the Centrelink papers.
4. The Tribunal finds that the newstart allowance debt was caused by consistent under-declaration by the Applicant of his wife's earnings. It was therefore not due to sole administrative error by the Commonwealth and cannot be waived under section 1237A of the Social Security Act.
5. The Applicant was sent correspondence on 3 October 2016, notifying him that his newstart allowance would be cancelled because he would be paid another Centrelink payment. He was sent a second piece of correspondence on the same date, headed "Your Parenting Payment". The letter noted his rate of payment from 17 September 2016, stated that "Your payment is worked out suing both your and your partner's incomes", and stated that information used for calculating his regular payment was as follows:

1. The letter went on to note that the Applicant was required to tell Centrelink within 14 days of specified changes, which included:
   • - you or your partner start work or go back to work, change jobs, or start any form of business or self-employment

• - your total personal income goes over $104.00 a fortnight
• - your partner's total personal income goes over $938.00 a fortnight

1. The Applicant was sent further notices by Centrelink during the parenting payment debt period. These included Income Statements dated 6 October 2016, 6 April 2017 and 10 October 2017, none of which reflected the Applicant's wife's income as part of the income and assets recorded by Centrelink. He was also sent letters on 6 October 2016, 14 October 2016, 28 October 2016, 8 November 2016, 11 November 2016, 12 November 2016 and 5 March 2017, which set out the Applicant's rate of parenting payment and noted that the information being used for calculating his rate of payment included his wife's annual income of $5.72 and fortnightly income of $0.00.
2. The Applicant was taken to the letter dated 3 October 2016 during the hearing and gave evidence that he had not advised of any changes because Centrelink had the payslips and already knew what was going on with his wife's pay. As to the requirement to advise if his income went over $104 per fortnight and his partner's over $938 per fortnight, the Applicant stated that he probably would not have read the whole of the letter. The Applicant also gave evidence of having gone into Centrelink and being advised the payment was correct, he believed four to five times in addition to the "initial times".
3. The Applicant submitted at hearing that the parenting payment debt is all due to Centrelink error, on the basis that he provided Centrelink a copy of his wife's payslips at the time of claim and Centrelink was aware of what the Applicant's combined income was at the time of claim. It was unclear when these may have been provided to Centrelink: the claim appears to have been made online,[8] and while there is evidence of the Applicant providing a birth certificate shortly after the claim was made,[9] there is no information in the documents suggesting the Applicant provided copies of his wife's payslips or that he was requested to do so.
4. Even were the Tribunal to accept the Applicant provided details of his wife's payslips at the time of claiming parenting payment, it does not follow that sole administrative error has caused the parenting payment debt. The Applicant was sent numerous notices by Centrelink during the period the parenting payment overpayment arose, some of which noted incorrectly his wife's income and one of which notified him of the requirement to advise if his partner's income increased above $938 per fortnight. There is no evidence before the Tribunal that the Applicant responded to any of the notices and he did not assert at the Tribunal hearing that he had done so.
5. In circumstances where the Applicant did not respond to the notified requirement to advise Centrelink that his wife's income was above $938 per fortnight, or otherwise advise of changes to his wife's fortnightly income, sole administrative error by the Commonwealth cannot be said to have caused the parenting payment debt. This debt is also unable to be waived under section 1237A of the Social Security Act.

1. Section 1237AAD of the Social Security Act allows that a debt may be waived where there are special circumstances (other than financial hardship alone) that make it desirable to waive a debt. In addition, the Tribunal must be satisfied that the debt has not arisen 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 relevant legislation, and that it is more appropriate to waive than to write off the debt or part of the debt.
2. The term "special circumstances" is not defined in the legislation. The Federal Court in Groth v Secretary, Department of Social Security [1995] FCA 1708 noted that (at [12]):[10]

The phrase "special circumstances", it has been said, although imprecise is sufficiently understood not to require judicial gloss...it is sufficient to observe that it would require something to distinguish Mr Groth's case from others, to take it out of the usual or ordinary case. That was, I consider, the only enquiry to be undertaken in this case. 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.

1. In Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25, the Federal Court stated (at [33]) that:[11]

There is less 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...

1. The Applicant was invited at the hearing to make submissions about any special circumstances in his case and responded by talking about the letters that had been set to him by Centrelink and that Centrelink had kept telling him the payment was fine. He queried how Centrelink had been able to produce information from 10 to 15 years earlier but had been unable to find one phone call, which he had been advised was being recorded. The Applicant stated that the debt has caused him stress and he has been diagnosed with stress-related diabetes. His teeth have been falling out due to stress.
2. The Applicant's wife provided written submissions on behalf of the Applicant, which stated the following:

I am writing on behalf of my husband, [the Applicant], to give you an idea of what's been happening.

His ute currently has a blown motor, which we have no money to fix. Because of this, he has been unable to attend legal appointments to try and get help with this case.

On top of this, we have had more deaths in the family, as well as our hot water cylinder packing it in, so having to take cold showers.

None of this takes into account the stress that I have been under at work, which has meant I haven't been able to be the support he needs me to be at times.

I have attached below a copy of the family budget, which I had to work on for school fees.

It clearly shows the position we are in, which allows zero movement for non-essentials.

1. The family's budgetwas attached to the email prepared by the Applicant's wife. As noted above, the Applicant gave evidence of being employed from 2024 up to the date of the hearing and was unwilling to engage with questions put to him at the hearing about his current level of income.
2. Having considered the matters raised by, and on behalf of, the Applicant about his circumstances, the Tribunal was not persuaded that the Applicant's circumstances are sufficiently unusual or out of the ordinary as to constitute special circumstances. The Tribunal finds that the discretion in section 1237AAD of the Social Security Act is not enlivened in this case in respect of either of the debts.
3. There are no other non-recovery provisions in Part 5.4 of the Social Security Act that apply in the circumstances of this case. The Tribunal therefore finds that the Applicant owes debts to the Commonwealth that are recoverable by Centrelink.

The Tribunal sets aside the decision under review and substitutes its decision that:

(i) The Applicant owes a debt to the Commonwealth in the amount of $4,940.94 for overpayment of newstart allowance between 6 June 2015 and 20 May 2016;

(ii) The Applicant owes a debt to the Commonwealth in the amount of $15,243.36 for overpayment of parenting payment between 17 September 2016 and 14 February 2018; and

[1] Commonwealth Ombudsman, Lessons in Lawfulness: Own motion investigation into Service Australia's and the Department of Social Services' response to the question of the lawfulness of income apportionment before 7 December 2020, August 2023.

[2] Social Security and Other Legislation Amendment (Technical Changes No. 2) Bill 2025.

[3] Points 1068‑G7B, 1068‑G7C, 1068‑G8 and 1068‑G8A and section 1073 of the Social Security Act. These provisions are not relevant to the circumstances of this matter.

[4] Excluded amounts under subsections 8(4), (5) and (8) do not include the Applicant's wife's income from employment.

[5] Respondent's Statement of Facts Issues and Contentions at paragraph 73.

[6] Cited in Respondent's Statement of Facts Issues and Contentions at paragraph 8.2.

[7] Cited in Respondent's Statement of Facts Issues and Contentions at paragraph 93.

[10] Cited in Respondent's Statement of Facts Issues and Contentions at paragraph 115.

[11] Cited in Respondent's Statement of Facts Issues and Contentions at paragraph 116.