Is there a debt of newstart allowance in respect of the period 7 November 2014 to 9 November 2017?

1. The applicant was married to Dr Bloggs in 1995. The applicant contacted Centrelink on 7 November 2014 to claim newstart allowance. On a customer declaration form received by Centrelink on 21 November 2014 she stated that she lived at a property in Kogarah (the Kogarah property), was separated from her husband, and had two sons, Joe (born 1997) and Sam (born 2002). She declared that she had no other real estate interests other than the home in which she lived. The Kogarah property had been jointly purchased in 2001.
2. The applicant signed a 'Relationship Details Separated Under One Roof' form in which she stated that she intended to live at the same address as the other person for under one month and that 'she had been attacked' and NSW Police had attended. The date of separation, completed in a different hand, is in 2004. [1] She provided evidence of a Police event number in relation to a domestic violence related incident in 2014.
3. The applicant was paid newstart allowance at the single rate from 7 November 2014.
4. In addition to the Kogarah property, the applicant and Dr Bloggs purchased a property at Hurstville (the Hurstville property) as joint tenants in March 2010 for $595,000. The applicant and Dr Bloggs took out a mortgage with the National Australia Bank (NAB) to purchase the property. The Hurstville property was then tenanted.
5. In a response to written questions from the AAT, Dr Bloggs advised that he moved into the Hurstville property on 30 December 2014 after the tenants had moved out. He then lived in the Hurstville property with their two sons.
6. Centrelink claim that the applicant was overpaid newstart allowance because she did not disclose that she had an interest in the Hurstville property when she claimed newstart allowance. In September 2014, newstart allowance was not payable to a single homeowner if the persons assets exceeded $202,000.[2]
7. The Secretary obtained historical valuations of the Hurstville property[3] as follows:
   • $800,000 7 November 2014,
   • $850,000 7 November 2015,
   • $900,000 7 November 2016,
   • $970,000 7 November 2017, and
   • $950,000 6 November 2018.
8. The Tribunal accepts the valuations which are not inconsistent with the applicant's valuations provided to Centrelink in 2019. The valuations set out above are to be used to determine the asset value of the Hurstville property.
9. During the period the applicant was in receipt of newstart allowance her home at Kogarah is not included in assessing her rate of payment under the asset test as it was her principal home; section 1118 of the Act. Because she jointly owned the Hurstville property, 50% of the asset value less any encumbrances permitted under section 1121 of the Act is maintained as an asset of the applicant.
10. Initially, the Secretary maintained that in accordance with subsection 1121(3) of the Act, the asset value of the Hurstville property could not be reduced by any charge or encumbrance over that property as the asset was secured against the Kogarah property. In the written closing submissions, the Secretary conceded that the Kogarah property was not held as security, and the encumbrance can reduce the value of the asset. The Secretary submitted that the Tribunal should return the matter for recalculation.
11. The newstart allowance debt of $45,303.25, was calculated on the basis of nil entitlement to newstart allowance due to the operation of the assets test. The Tribunal has identified the following errors with the recalculated debt:
    • the encumbrance over the Hurstville property has not been taken into account, and
    • the debt calculations reflect that Ms MGDT is regarded as partnered from 7 November 2014 and single from 1 December 2014.[4] Consistent with the original decision to regard her as single,[5] there is no evidence that Ms MGDT was a member of a couple as defined in section 4 of the Act at the time of her claim for newstart allowance. The Tribunal finds that Ms MGDT was single from 7 November 2014.
12. Despite this, the Tribunal considers that the decision that the applicant had no entitlement to newstart allowance due to the operation of the assets test is correct. Even when the encumbrance over the Hurstville property [6] is taken into account, the applicant's assets exceed the relevant threshold. For example, on 31 October 2014 the balance of the encumbrance was $306,771.68 and the value of the Hurstville property was $800,000. The applicant's assets of $246,614 exceed the threshold of $202,000 at the time of the claim for newstart allowance. Because the value of the Hurstville property increased and the outstanding mortgage on the property decreased the applicant's assets continued to exceed the threshold at which newstart allowance was not payable.
13. The applicant was overpaid newstart allowance amounting to $45,303.25 during the period 7 November 2014 to 9 November 2017.

Is there a debt of carer payment in respect of the period 10 November 2017 to 4 November 2018?

1. Between 10 November 2017 and 4 November 2018, the assets limit for a single homeowner for carer payment ranged between $253,750 and $258,500 for full pension, and $552,000 to $564,00 for a part pension
2. In October 2017 Joe began living with the applicant at the Kogarah property after he was discharged from hospital into her care after being diagnosed with a severe form of schizophrenia. On the claim form for carer payment and carer allowance the applicant advised she did not own any property other than the home she lived in.[7] The applicant's claim for carer payment was assessed on 12 January 2018. She was paid carer payment and carer allowance in respect of the care she provided to Joe from 10 November 2017.
3. On 6 November 2018, the applicant moved to the Hurstville property and lived there with her two sons. Dr Bloggs moved into the Kogarah property.
4. The applicant advised Centrelink of the change of address on 19 February 2019. She returned a 'Mod R' on 18 March 2019 in respect of the Kogarah property and a 'Mod R' on 29 March 2019 in respect of the Hurstville property. She advised that she owned the properties jointly with her ex-husband.[8] The mortgage on the Hurstville property was discharged on 8 March 2019. The mortgage on the Kogarah property was discharged on 7 March 2019.
5. Centrelink claim that the applicant was overpaid carer payment from 10 November 2017 to 4 November 2018 because she did not disclose that she had an interest in real estate in the Hurstville property when she claimed carer payment. As previously noted, the Hurstville property is valued at $970,000 as of 7 November 2017. On 1 November 2017 the balance of the encumbrance over the Hurstville property was $48,788.95.[9] By the Tribunal's calculations, at the time of her claim for carer payment, the value of applicant's assets arising from her interest in the Hurstville property amounts to $460,605.
6. For the reasons set out above, the overpayment of carer payment amounting to $16,766.19 has been incorrectly calculated as the encumbrance over the Hurstville property has not been taken into account in determining the value of the applicant's assets.
7. Once the Hurstville property became the applicant's principal home on 6 November 2018, it is an exempt asset.[10]
8. The carer payment Rate Calculator requires consideration of the applicant's rate under both the income test and the asset test. The test which produces the lower rate of carer payment is the test that is then applied.
9. The Secretary also submitted that the applicant held liquid assets in her sons' bank accounts that should form part of her assessable assets in calculating the extent of her overpayment.[11]

1. Asset has a broad definition in the Act (section 11) and means "property or money". Unless an asset is an exempt asset it must be included for the purpose of the assets test. In addition, section 9 of the Act sets out the general definitions used in the assessment of financial investments. A reference in the Act to the value of a particular asset includes, if the asset is owned by the person jointly or in common with another person or persons, a reference to the value of the person's interest in the asset: subsection 11(2) of the Act.

1. This account was held in the joint names of the applicant and her youngest son Sam. Transactions prior to 7 November 2014 were not requested by Centrelink or supplied by ANZ. In 2014 Sam was aged 12, and on 12 November 2014 (the first entry provided), the balance of the account was $4,876.18. The applicant stated at hearing that Sam made some money while still at high school but was too young to open the account in just his name. Other than a deposit of $3,350 on 31 December 2014, there is very little activity in this account until February 2016.
2. The applicant acknowledged that the debits and corresponding credits in 2016, 2017 and 2018 were to and from accounts held by her. The balance of the account on 30 July 2018 was nil. From 6 November 2018, Sam was living with the applicant and was in her care. The applicant transferred $3,894 to the account on 17 December 2018 from her bank account. It appears to the Tribunal funds were subsequently transferred to third parties for tutoring. The balance of the account from 15 January 2019 was reduced to nil and there have been no further transactions.
3. It is not possible to determine from the documentary and oral evidence the extent to which Sam's own efforts contributed to the money deposited into this account. The Tribunal is satisfied however that he benefited from the funds in 2018 when funds were transferred to another account for tutoring. The applicant stated that she took Sam to China on a holiday. It is unclear when this occurred, and the applicant's oral evidence about the transfer of funds into and out of the account was at times difficult to follow. The applicant however was not evasive, and she attempted to answer questions put to her. The Tribunal finds that the joint account was opened as Sam was a minor who benefited from the funds that were in the account.
4. The cases referred to by the Secretary[13] to support their contention that the account was a financial asset of the applicant relate to the definition of the term liquid assets for the purpose of the liquid asset test waiting period. They have no application to the issue of whether money is a financial asset of the applicant.
5. The Tribunal finds that as Sam had a 100% interest in the funds in the account. The account does not count towards the value of the applicant's financial assets.

1. The applicant is a signatory on two accounts in the name of her eldest son; ANZ account ending 1307 and ANZ account ending 1315. These accounts belong solely to her eldest son Joe, and the applicant is merely a signatory to the account.
2. Transactions for account ending 1307 commence from 30 November 2017 [14] and show regular deposits of youth allowance with a corresponding amount being transferred to account ending 1315 on a regular basis. This continued until 2019 when debits frequently correspond to every day purchases such as at a chemist and Costco. From May 2019, Joe's disability support pension is paid into account ending 1307.
3. Transactions for account ending 1315 commence on 30 November 2017. The source of credits is from account ending 1307. There are few debits, and the balance of the account grew to $37,460.44 by 31 January 2019. The balance was then transferred to the applicant's account ending 9457.[15]
4. The Secretary submitted that the applicant treated these accounts as her own and used the funds to pay for her day-to-day living expenses such as Coles, Woolworths and Aldi. It was submitted that the applicant used the accounts "exclusively for her own financial benefit" and as such the accounts should form part of the applicant's assessable assets.[16]
5. The Tribunal does not agree. The applicant's own accounts reflect numerous debits at supermarkets, butchers, and fruit markets.[17] The applicant's evidence to the Tribunal is that she arranged for all of the Joe's expenses to be met. He is unable to manage his own finances due to the severity of his condition. He was first hospitalised in 2016 or 2017 and has not accessed the accounts since. His only source of income is disability support pension. The balance of Joe's bank account increased steadily until 2019. The accounts do not reflect withdrawals or expenditure for everyday items until 2019. The Tribunal concludes that the applicant, who is Joe's carer since at least October 2017, was meeting all of Joe's expenses and it is in this context that the amount of $37,460 was transferred to her account in January 2019. The Tribunal concludes that as Joe's nominee the applicant utilised his income support payments for his own benefit.
6. Funds held in accounts ending 1307 or 1315 do not form part of the applicant's assessable assets.

1. In determining the applicant's entitlement to carer payment, it will be necessary for the Secretary to compare the rate payable under the income test to the rate payable under the assets test. For this reason, the Tribunal also considered the evidence and submissions in relation to the applicant's income during the relevant period.
2. In 2013 Dr Bloggs purchased a property in Hurstville (the second Hurstville property) in his name only. This property was tenanted. The Tribunal notes that the 'summary of changes' prepared by Centrelink to support the overpayment calculation reflects monthly rental income of varying amounts from the second Hurstville property.[18]
3. The Secretary submitted that the applicant failed to declare receipt of this income which was paid into a National Australia Bank home loan bank account ending in 1461 jointly held with Dr Bloggs.[19] It has calculated 50% of the rent received into account ending 1461 is the income of the applicant. [20] The Tribunal does not agree with this approach.
4. Section 1075 of the Act provides that rental income from a property is to be reduced by losses and outgoings that relate to that property and which are allowable deductions for the purposes of section 8-1 of the Income Tax Assessment Act 1997 for that period. Monthly deposits into a bank account cannot be relied upon to determine ordinary income. However, more importantly, any rental income derived from the second Hurstville property was not the applicant's ordinary income. The second Hurstville property was solely in Dr Bloggs's name. From the time the applicant claimed newstart allowance she was separated from Dr Bloggs and his income is not relevant in determining her rate of carer payment.
5. Section 1076 of the Act provides for deemed income on financial investments, which includes available money and deposit money. Centrelink has obtained details of the balance of the applicant's bank accounts during the overpayment period. If the value of the applicant's financial assets exceed the deeming threshold, the ordinary income that is taken to be received is worked out in accordance with subsection 1076(3A) of the Act.
6. The matter is returned to Centrelink to recalculate the applicant's entitlement to carer payment for the period 10 November 2017 to 4 November 2018 in accordance with the Tribunal's findings.

Is there a debt of carer payment in respect of the period 21 March 2022 to 5 January 2023?

1. The applicant and Dr Bloggs were divorced on 28 June 2019. The property titles were changed as part of a property settlement in divorce proceedings. The Kogarah property was transferred exclusively to Dr Bloggs and the Hurstville property was transferred exclusively to the applicant with effect from 8 October 2020. The applicant notified Centrelink of the property transfer on 15 August 2022.
2. The Secretary has calculated that the applicant was overpaid $2,762.24 in carer payment in the period 21 March 2022 [21] to 5 January 2023 due to the value of her assets. The calculations reflect however that the applicant was overpaid from 21 March 2022 to 18 August 2022, and then underpaid $8.25 per fortnight.[22] From 15 August 2022, the Secretary has calculated there is no overpayment as the applicant's income and assets were under the applicable free area.[23]
3. The Secretary has calculated the carer payment debt under the asset test on the basis that 50% of the Kogarah property was an assessable asset until 15 August 2022, in spite of the evidence that the Kogarah property was transferred exclusively to Dr Bloggs on 8 October 2020.
4. On 20 January 2025, the Tribunal specifically invited the Secretary to expand on the reasons why, in the context of the overpayment calculation, the reduction in the value of the applicant's assets from 8 October 2020 is not reflected in the overpayment calculation until the date of notification; 15 August 2022.
5. The Secretary submitted that the date of effect of a favourable determination provisions are a relevant consideration as the applicant delayed notifying Centrelink that she no longer had an interest in the Kogarah property.

Do the date of effect of a favourable determination provisions apply?

1. Specific provisions are found in Division 9, subdivision B of the Administration Act (sections 108-114A) relating to the date of effect of a favourable determination.
2. In the Secretary's Statement of Facts and Contentions dated 3 December 2024, the Secretary submitted_:_
3. 5.28 On 6 November 2018, the Applicant moved into the Hurstville property. As a result, the Kogarah property was no longer her principal home and, consequently, an assessable asset. The Applicant advised the Agency of this change until 19 February 2019; that is, before the commencement of the second debt period. Accordingly, this becomes an asset to be considered as part of the calculation of the Applicant's CP payments as this point in time.
4. 5.29 On 8 October 2020, the Kogarah property was transferred exclusively to [Dr Bloggs]. The Applicant did not advise the Agency of this transfer until 15 August 2022, and did not provide copies of the transfer until 22 February 2023.
5. 5.30 Under subsection 110(1) of the Administration Act, if a person notifies the Agency of an event or change in circumstances that gives rise to a favourable determination such as a higher rate of payment, the increase in the person's rate only becomes payable from the day the event occurred or the day the Agency was notified, whichever is later.
6. 5.31 Accordingly, the change in the Applicant's assets can only give rise to a change in the Applicant's CP rate as at 22 February 2023 - that being, the date the Applicant provided the corresponding documents regarding the transfer of the Kogarah property to [Dr Bloggs]. Therefore, the Kogarah property is included as an asset in calculating the Applicant's CP entitlement for the entire second debt period (21 March 2022 to 5 January 2023).

8. At the hearing the Secretary conceded that the applicant notified Centrelink on 15 August 2022 that the transfer had occurred and as such the value of half of the Kogarah property is maintained as an asset until 15 August 2022, rather than 22 February 2023.
9. The Tribunal sought further submissions from the Secretary on his reasons for relying on the application of Division 9 of the Administration Act, rather than determining the quantum of the overpayment of carer payment by applying the established facts.
10. In response to the Tribunal's Directions the Secretary stated:

To comply with direction 1.6, we confirm that the Secretary maintains that subsection 110(1) of the Social Security (Administration) Act 1999 (Administration Act) applies in the Applicant's case, such that the Kogarah property should be treated as an assessable asset until 15 August 2022 (i.e. the date the Applicant informed the Agency that the Kogarah property had transferred solely to her ex-husband as part of the divorce property settlement), even though it was no longer the Applicant's asset from 8 October 2020. Subsection 110(1) provides that, if a favourable determination is made following a person informing the Agency of an event or change of circumstance, the determination takes effect on the later of the day on which the person so informed the Agency or the day on which the event or change occurred. In the Applicant's case, the later day is 15 August 2022, as there is no evidence that she notified the Agency of the transfer of the Kogarah property to her ex-husband prior to that date. The Agency's determination constitutes a "favourable determination" as defined in section 108 of the Administration Act, as the removal of the Kogarah property from the Applicant's assessable assets led to a rate increase, which the Agency took into account in calculating her third debt ($2,762.24).

In the Secretary's view, none of the exemptions to subsection 110(1) in subsections 110(1A) - 110(11) of the Administration Act apply in the Applicant's case... In relation to subsection 110(2), the Secretary acknowledges that the Agency issued notices to the Applicant under subsection 68(2) of the Administration Act during the debt periods, informing her that she was required to report any relevant changes in circumstances, including, most importantly, any change in her interest in property, within 14 days. However, there is no evidence that the Applicant provided a statement about the Kogarah property within the prescribed timeframe before 15 August 2022. The last notice the Applicant received prior to notifying the Agency on 15 August 2022 was dated 21 March 2022 (ST27/811), which was 4 months and 25 days later - well beyond the 14-day period required by the notice.

1. The Secretary then referred to the following decisions of the AAT stating:

Examples of other situations in which the Tribunal has accepted that Division 9 of the Administration Act applies in the context of debt calculations covering multiple instalment periods include:

• Zohar and Secretary, Department of Social Services (Social services second review) [2015] AATA 772, (Zohar) in which Senior Member Walsh accepted at [80] - [82] that subsection 110(1) was appropriately applied by the Agency for the purpose of raising and calculating an Age Pension debt against the Applicant, in circumstances where she failed to correct an error about her fortnightly wages for a number of years; and
• Green and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 811, (Green) in which Senior Member McDermott found at [22] that the Applicant's ex-partner's earnings had to be taken into account in assessing his appropriate rate of payment of Newstart Allowance until 30 October 2009 (the date of notification of the separation), despite the actual date of separation being 13 September 2009.

1. In the Tribunal's opinion, the Secretary's assertion that section 110 of the Administration Act entitles the Secretary to maintain the value of an asset against a person for a period when, as a matter of fact, it was not the person's asset is wrong in law and absurd. With respect, neither of the cases referred to support the Secretary's assertion.
2. Qualification for and payability of social security payments is regulated by the operative provisions contained in the Act. A debt arises for example, when a person is paid amounts they are not entitled to be paid because of their income or the value of their assets at a particular time. If an event occurs or there is a change in circumstances and a finding of fact is made, it is applied in accordance with the relevant statutory provisions.
3. The Act functions to regulate and authorise payments of social security benefits and pensions. The date of effect provisions in the Administration Act relied on by the Secretary do not regulate payability or qualification.
4. The operation of these provisions in the Act however is constrained by the favourable determination provisions set out in the Administration Act_._ The purpose of these provisions is to provide for the date a favourable determination takes effect from and can limit the amount of arrears that may be payable.
5. Subsection 110(1) of the Administration Act serves to limit the effect of a favourable determination, the payment of arrears, arising as a result of a favourable determination made under section 78, 85, 85AA or 85A of the Administration Act. Sections 85, 85AA and 85A of the Administration Act clearly have no application. Section 78 of the Administration Act relates to a rate increase determination.
6. The application of section 110 involves a three-step process;
   • a determination of whether a person has been paid less than their correct entitlement under the applicable Rate Calculator, and if so,
   • a determination is made that the person was entitled to a higher rate and if so,
   • a determination is made of the date from which arrears may be payable.
7. In the context of this case, the fact is that the Hurstville property was the applicant's principal place of residence from 4 November 2018 and it is a disregarded asset under section 1118 of the Act from that date. As the Kogarah property was not held jointly after 8 October 2020, no part of the asset value is attributed to the applicant from this date.
8. The Tribunal considers that section 110 of the Administration Act is irrelevant to debt calculations. In the Tribunal's view, the Secretary's argument regarding the application of section 110 of the Administration Act is incorrect.
9. The value of the Kogarah property has no role to play in determining the payability of carer payment under the Pension Rate Calculator after 8 October 2020. For this reason, the recalculated overpayment has been wrongly calculated.
10. The Tribunal notes that there is an alternative debt calculation which reflects a debt of $39.58 for the period 21 March 2022 to 5 January 2023 arising from 'SVS updated'.[24] This may be a calculation under the income test due to Centrelink updating the balance of the applicant's bank accounts and subsequent application of deemed income. However, the Tribunal cannot be satisfied on this point given the lack of an explanation. The Secretary made no submissions in relation to a debt under the income test. Overall, the Tribunal was not persuaded that a debt has occurred for the period 21 March 2022 to 5 January 2023.

Issue 2 - Is there reason not to recover the newstart allowance debt in respect of the period 7 November 2014 to 9 November 2017 and the carer payment debt in respect of the period 10 November 2017 to 4 November 2018?

1. In Secretary, Department of Social Security v Hales [1998] FCA 219 the Federal Court said that, in the ordinary course, where a person receives a social security overpayment the taxpayer is entitled to expect the overpayment will be recovered. However, the law provides in certain circumstances for the writing off and waiver of debts otherwise due to the Commonwealth. Social security legislation provides that, in certain circumstances, recovery of a debt may be 'written off' or 'waived'.
2. The debts arose because the applicant did not advise Centrelink of her legal interest in the Hurstville property. The only waiver provision which might have application in this case is section 1237AAD of the Act which provides for discretion to waive the right to recover the debts if the Secretary (or the Tribunal) is satisfied that:

(a) the debt did not result wholly or partly from the debtor or another person knowingly:

(i) making a false statement or a false representation; or

(ii) failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and

(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and

(c) it is more appropriate to waive than to write off the debt or part of the debt.

1. The first question is whether the applicant or another person knowingly made a false statement or false representation or knowingly failed or omitted to comply with a provision of the Act or the Administration Act.
2. In Re Callaghan and Secretary, Department of Social Security [1996] AATA 413, Deputy President Forgie said:

48. There is nothing in section 1237AAD which suggests that the word "knowingly" should be given any meaning other than that a person has actual knowledge, rather than constructive knowledge, that he or she is making a false statement or representation or that he or she is failing or omitting to comply with a provision of the Act.

1. This principle has been upheld in numerous decision of the Tribunal.[25] The test is whether a debt arose as a result of the applicant having actual knowledge that she was making false representations or actual knowledge that she was failing to comply with her notification obligations.
2. The applicant submitted that she did not knowingly fail to comply with her obligations and did not knowingly make a false statement. She stated that if the claim for carer payment reflects that her only savings were in one account which totalled $600, then the papers must have been falsified by someone, presumably in Centrelink who acted with "ill intent". The applicant expressed concern that the Chinese Communist Party has been making life difficult for her in many aspects, and their agents have infiltrated Centrelink.
3. At no time did the applicant concede that she had a legal interest in the Hurstville property while residing in the Kogarah property. As the Tribunal understood her oral evidence, she is of the view Dr Bloggs was the one who took care of their finances and he was the one who arranged for the property to be rented and the mortgage to be paid. The Hurstville property was in joint names to assist Dr Bloggs to obtain the loan. The applicant rejected claims put by the Secretary that she had a 50% interest in the Hurstville property and asked how that was calculated. The applicant stated that she had separated from her husband in about 2003 or 2004 and told him that if he needed to purchase another property to move into he should. The Hurstville property was purchased in 2010.
4. The Secretary submitted that the first debt arose because the applicant knowingly failed to comply with her notification obligations stating [5.90 of the Statement of Facts Issues and Contentions]:

Despite being subject to the notification obligations of subsection 66A(1) of the Administration Act, and the provision of multiple subsection 68(2) notices to the Applicant outlining her obligation requirements, the Applicant did not advise the Agency during the first debt period of the following changes within 14 days of their occurrence:

(a) When she lodged her claim for NSA on 21 November 2014, the Applicant made no mention of the Hurstville property as an investment property. The Applicant did not advise the Agency of her interest in this property until a conversation with the Agency on 18 November 2019. The Applicant only advised that she received rent from the Hurstville property on 12 April 2019.

(b) Although the Applicant advised the Agency on 23 December 2014 that [Dr Bloggs] would be moving out with the children in January 2015, she never confirmed this event took place, nor did she advise that [Dr Bloggs] had moved into the Hurstville property - that being a property for which she had a 50% interest.

(c) To date, the Applicant has not ever advised the Agency that the rent received from the second Hurstville property was used to pay the mortgage of the Hurstville property.

(d) Despite moving from Kogarah to the Hurstville property on 6 November 2018, the Applicant did not advise the Agency of her change in address until 4 months later on 18 March 2019.

(e) The Applicant did not provide information regarding several bank accounts until 16 August 2022, when she provided copies of her bank statements from accounts ending ANZ 5538, 4311, 8898 and 9457. Further, the Applicant did not notify the fact that she was a signatory to [Joe]'s bank accounts ending 1307 and 1315, and also had a joint ANZ bank account with [Sam] ending in 3795, nor that she was utilising the money within these accounts for her own benefit. The Agency only became aware of this information following receipt of responses to section 196 notices.

1. The Tribunal addressed the issues raised by the Secretary in turn.

1. On her claim for newstart allowance, the applicant declared "I have no real estate interests other than the home in which I live". On her claim for carer payment she responded that she did not own any real estate apart from the home (she) lived in.[26]
2. At hearing, the applicant stated that her relationship with Dr Bloggs had broken down in 2004. She claimed Centrelink payments [27], but did not proceed with the claim because they were still living under the same roof in Kogarah. Following the domestic violence incident in August 2014, she discussed with the police the long standing issues and it was agreed that Dr Bloggs would move into the Hurstville property once the tenants vacated.
3. Throughout their relationship Dr Bloggs had been the only income earner. He arranged for the mortgages to be paid. The value of the Hurstville property was higher than their unit in Kogarah, but the applicant suggested he move into that property to make it more attractive for him to leave. The applicant stated that she did not consider that she had an interest in the Hurstville property as Dr Bloggs and her children were going to move into it and he paid for the property. It was not as if she could do anything with the property and the joint loan "only brought debt to me". She was concerned that she may not get any property once she was divorced as the Hurstville property had nothing to do with her. She stated that she only got the property when they divorced because she was looking after their disabled son. She misunderstood Centrelink's question on the claim form.
4. The applicant attended in the directions hearing and the substantive hearings in person. Throughout the hearings the applicant relied on an interpreter in Mandarin. The applicant stated that when she attended a Centrelink office she relied on an interpreter if one was available. At other times she took Centrelink forms to a community organisation and sought assistance with their completion. Other times she relied on Google translate.
5. The applicant is not fluent in English. The Tribunal is satisfied that she did not understand what was meant by the term 'real estate interest' and she did not consider that she held a legal interest. Her answers to the questions on the claim forms were not knowingly incorrect.

1. The applicant informed Centrelink in the 'Relationship Details' form dated 20 November 2014 that she intended to live at the same address as Dr Bloggs for under a month, and that Dr Bloggs planned to move to another residence. She also discussed her circumstances with Centrelink on 23 December 2014. Having told Centrelink that she was separated, she was obliged to tell Centrelink within 14 days if she reconciled, or started living with someone else as their partner. Contrary to the Secretary's submission, the applicant was not informed of an obligation to tell Centrelink where Dr Bloggs was living, or indeed the date he left the Kogarah property.

1. The applicant stated the rent from the second Hurstville property was not her money. As discussed, the Tribunal agrees and finds that the applicant was not obliged to advise of the rental income received by her former partner.

1. The applicant contacted Centrelink on 19 February 2019 and her address was updated to the Hurstville property.[28] She had been living with the eldest son at the Kogarah property until it was agreed that the parents would swap residences as part of the property settlement. The precise date that the applicant and the eldest son moved to Hurstville is not known, but Dr Bloggs told the Tribunal that he moved to the Kogarah property in about November 2018. The Tribunal finds that the applicant did not advise Centrelink within 14 days that she had changed address.
2. The debt period ends on 4 November 2018. The Tribunal is not satisfied that the debt arose in whole or in part because the applicant delayed notifying Centrelink of the change of address.

1. The Tribunal has already addressed the Secretary's contentions in relation to her children's bank accounts.
2. At hearing, the Secretary submitted that the applicant's claim for carer payment contained false declarations in relation to accounts held in her name. On the claim for carer payment the applicant declared that she had $600 in account ending 5538, yet in November 2017 the balance of the account was $12,695.48. She also failed to advise of the existence of three other ANZ bank accounts ending in 8898, 9457 and 4311.
3. The documentary evidence in respect of the applicant's ANZ bank accounts ending 5538, 4311, 8898 and 9457 is incomplete. Where statements are provided the evidence reflects frequent transfers between accounts. Overall, the Tribunal was not persuaded that the applicant's net financial position is such that deemed income on the financial investments would result in an overpayment.
4. However, even if an overpayment occurred due to the amount of the applicant's financial assets, the Tribunal is not satisfied that it arose because she knowingly made a false statement or knowingly failed to advise if she started a new investment or there was a change of $2,000 or more to the value of her financial investments. [29] [30]
5. The applicant stated she was assisted by an interpreter when she claimed carer payment. She does not think it is possible that she only declared a balance of $600, and if that is what it states it is possible the document is false as it doesn't have her signature. In response to questions about her notification obligations as set out in various letters sent by Centrelink, the applicant stated she does not remember receiving those notices. If she did receive them, she would have relied on Google translate to understand the content.
6. While the Tribunal does not accept the applicant's contentions that the evidence presented by the Secretary has been falsified in some way, neither does the Tribunal accept the Secretary's submission that the omissions were deliberate on the part of the applicant or that she had actual knowledge that she was providing incorrect information. The applicant contacted Centrelink on 12 April 2016 as she was considering improvements to her property and enquired about the 'maximum they can have before NSA cancels' and was told $202,000.[31] The Tribunal considers that it is unlikely that the applicant had actual knowledge that changes of $2,000 to her financial investments was a matter that she needed to inform Centrelink about.

1. The Tribunal finds that the debt of newstart allowance that arose in the period 7 November 2014 to 9 November 2017and the debt of carer payment that arose in the period 10 November 2017 to 4 November 2018 did not arise because the applicant knowingly failed to comply with her notification obligations or knowingly made a false statement or representation.

1. The next question is whether there are special circumstances in this matter that make it desirable to waive recovery. The term 'special circumstances' is not defined in the legislation. The Federal Court and the Tribunal have considered the issue of special circumstances on a number of occasions.
2. In every case, the individual circumstances of the case were examined to determine whether the circumstances were such that it would be unjust, unreasonable or inappropriate for the debt to be recovered. In particular, the Full Court of the Federal Court in the matter of Dranichnikov v Centrelink [2003] FCAFC 133 determined that whether there are special circumstances in a particular case is dependent on whether there are circumstances that would distinguish the case from the usual case.
3. The Federal Court in Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25 emphasised that it is not the intention of Parliament that the exercise of this discretion be confined to the 'exceptional' case, but rather that there is something that distinguishes the case from the ordinary or usual case. In the Tribunal's view it is also appropriate, when considering the exercise of this discretion, to have regard to the objects of the Act in the recovery of social security overpayments.
4. In this case, the Tribunal has concluded that there are special circumstances that set this particular case apart and which make it desirable to waive recovery of the debt.
5. The Tribunal notes that the Secretary accepted the decision on first review and refunded the applicant an amount of $5,560.90 in accordance with the decision dated 17 January 2024. The applicant stated that she had sought second review of that decision because Centrelink continued to withhold amounts from her carer payment after the decision of the Tribunal on first review, and she believes Centrelink did not implement the decision in full. She also believes the second debt should have been waived in full and that she did not fail to comply with her notification obligations in respect of her bank accounts.
6. The applicant told the Tribunal that she had felt depressed prior to leaving China, but that Australia gave her a second life and she is healthy. She has been fighting the Chinese Communist Party for a number of years and believes that they have infiltrated Centrelink. She has raised her concerns with the Australian Federal Police who are assisting her. The applicant stated her mobile phone is monitored and her 'system' at home has been hacked.
7. The applicant has an ongoing dispute with strata management and stated that this has caused her mental stress. Objects have been thrown at her home and she has reported the incidents to NSW Police. A legal matter is on foot in the local court.
8. The applicant has been the carer for her eldest son since 2017 when he was discharged from hospital into her care. The applicant provided evidence of two hospital admissions in 2024. In the discharge summary report dated 18 April 2024 it is noted that a family meeting was conducted with the applicant on 11 April 2024 in which "she was noted to have a tangential and circumstantial thought form requiring frequent re-direction during the meeting to address the questions asked". This is consistent with her presentation during the Tribunal hearing despite the assistance of a Mandarin interpreter. The medical report notes that the applicant stated that she was treated for OCD in her late teens and ceased medication prior to falling pregnant with her first child.
9. The applicant was agitated at times during the hearing, and expressed concern about some of the medical treatment her son has received. The discharge summary report notes her eldest son has been diagnosed with a number of mental health conditions including psychotic depression, schizoaffective disorder, depression and OCD from a number of psychiatrists and requires a high level of daily support. It is stated that his support needs are met by his mother and he has minimal engagement in social activity. It seemed to the Tribunal that an application for funding under the National Disability Insurance Scheme has not been submitted.
10. The applicant stated that there had been a history of domestic violence in her relationship with Dr Bloggs. They argued often and fiercely. She stated that at times the abuse was physical and her general practitioner who is now retired was aware of the abuse. One time she threw a toy at Dr Bloggs and his lip bled. She had to attend Court. Sometimes he would call the Police and she is of the view that the Police believed that she was the instigator of the violence as her husband spoke English more fluently than her and she had previously been in Court. She did not want Dr Bloggs to lose his job as he was financially supporting the family and so she hid when the Police came or she would refuse to make a statement. When she separated from her husband in around 2004 Centrelink staff were not supportive and she thought she could not get paid while they lived in the same house.
11. The applicant receives carer payment and has the usual costs associated with home ownership. She has some savings. Her only asset of significance is the Hurstville property. It is likely the applicant will remain the carer for her eldest son in the foreseeable future and her current financial situation is unlikely to change.
12. Taking all of the applicant's circumstances into account, the Tribunal concludes that strict enforcement of the liability to repay the debts are unjust, unreasonable or otherwise inappropriate. The applicant's circumstances are sufficiently special such that the exercise of the discretion to waive the total amount of the debts is warranted.
13. The final matter that requires consideration is whether it is more appropriate to waive than to write off part of the debt. Writing off a debt in effect will stop recovery action of a debt for either a defined or undefined period but does not extinguish a debt, which is the case when a debt is waived. The applicant's capacity to repay the debts at some future time is not likely to increase. The applicant's circumstances are such that the Tribunal considers it is more appropriate to waive than write off recovery of the debts.

The Tribunal sets aside the decision under review and, in substitution, decides that:

a) The applicant was overpaid newstart allowance amounting to $45,303.25 in the period 7 November 2014 to 9 November 2017,

b) The applicant was overpaid carer payment in the period 10 November 2017 to 4 November 2018,

c) The matter is returned to the Secretary to calculate the carer payment debt in accordance with the Tribunal's findings,

d) Recovery of both debts is waived in full pursuant to section 1237AAD of the Social Security Act 1991, and

e) There is no debt of carer payment for the period 21 March 2022 to 5 January 2023.

Dates of hearing: 16 January 2025 and 12 February 2025.

Solicitors for the Respondent Ms Campbell, HWL Ebsworth

[2] A guide to Australian Government payments: 20 September 2014 - 31 December 2014.

[4] ST41/1241 and 1256. The Tribunal notes that Ms MGDT stated on her claim for carer payment in 2017 that she separated 1 December 2014.

[8] ST11/ 292 to 299 and ST12/300 to 306.

[10] This leaves open the possibility, acknowledged by the Secretary at the hearing, that Centrelink is considering whether Ms MGDT was overpaid carer payment for a period after November 2018 due to the value of Ms MGDT's interest in the Kogarah property.

[11] Secretary's closing written submissions paragraph 13.

[13] Jacobsen and the Secretary, Department of Social Security [1992] AATA 7846 and Biddlecombe and Secretary, Department of Family and Community Services [1999] AATA 99/0528.

[16] Secretary's written closing submissions dated 26 March 2025.

[19] Secretary's Statement of Facts, Issues and Contentions, paragraph 5.117. ST31/1143 to 1159.

[20] A summary of the monthly rent is set out in Annexure A of the Secretary's Statement of Facts, Issues and Contentions.

[21] It appears to the Tribunal that the Secretary has calculated a debt from 21 March 2022 on the basis of bank account statements provided on 16 August 2022. T2/7.

[23] Secretary's response to Direction 1.4.3 provided by email 4 February 2025 and ST46/1266 to 1271.

[25] For example: Hogben v Secretary, Department of Social Services [2020] AATA 985; Gagatek v Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 255; Alcock v Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 784; Kim v Secretary ,Department of Social Services [2021] AATA 831.

[29] ST24/565 to 66. A letter dated 23 December 2014 setting out the applicant's notification obligations.