Quiggin and Secretary, Department of Social Services (Social services second review) [2019] AATA 3324 (9 September 2019)

1. As noted above, as of September 2014 the company owed $1,076,429 to the applicant: T9, 225. A loan for approximately this amount appears in the company accounts for 2014, 2015 and 2016 as a debt owed by the company to the applicant: T9, 280, 337. It is not necessary to quantity the precise amount of the loan at the date of winding up when the debt was dissolved because on any estimation valuing the loan at approximately one million would place the total asset value well over the part pension asset test threshold.
2. The applicant's combined assets were above the 2014 asset test limit cap for Part Pension of $1,145,500. The face value of the loan was such that the applicant's aggregate asset position exceeded the asset test threshold by a significant margin. The basis upon which his pension was calculated in 2014 was therefore flawed.
3. It follows that the applicant was not eligible to receive a part age pension in September 2014 and the decision to cancel the pension was correct.
4. The applicant was not entitled to receive the benefit throughout the period that his combined assets exceeded the asset test threshold and this state of affairs continued until the loan ceased to exist. This occurred when the company was deregistered on 7 April 2017. The basis for calculation of the adjusted repayment amount is therefore correct. This amount is a debt due to the Commonwealth: ss 1222A; 1223(1). The applicant is not entitled to obtain the benefit even if the payment was made by mistake as a result of a computer error or an administrative error: s 1223(1AB)(a).
5. It is regrettable that in 2014 the applicant did not realise the significance of the loan as a potential hurdle to receiving a pension. He presumably did not know that he could apply to have the loan taken out of the asset pool, by showing severe financial hardship. Such recourse is provided for under s 1129. The Secretary may remove an unrealisable asset from the asset pool provided that certain conditions are met. But the applicant did not apply for relief as required by s 1129(1)(d). The Minister would have had to be satisfied that the applicant would suffer severe financial hardship unless the asset were removed: s 1129(1)(e). There is insufficient evidence before the Tribunal to say whether in 2014 the applicant was experiencing severe financial hardship, but in any event, it would be an academic exercise. The applicant did not apply for this relief, and there is no statutory basis for retrospectively granting it.
6. There are however other provisions of the Act which may be called in aid. Section 1236 permits the Secretary to write off debts on the grounds of severe financial hardship; s 1237AAD allows the Secretary to waive the right to recover in special circumstances (other than financial hardship alone); and s 1237A requires the Secretary to waive recovery of a debt where the overpayment is solely attributable to administrative error by the Commonwealth. Counsel for the Respondent submits that none of these provisions apply.

WRITING OFF THE DEBT DUE TO SEVERE FINANCIAL HARDSHIP: S 1236

1. Section 1236 relevantly provides that the Secretary may write off a debt under certain circumstances, one of which is that the debtor has no capacity to repay the debt. Section 1236(1C) provides that if a debt is recoverable by means of deductions from the debtor's social security payment 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. This raises the question whether repayment of the debt by means of deductions from his ongoing pension entitlements would create severe financial hardship.
2. By letter dated 1 April 2019 the applicant set out in detail his present circumstances including the impact of the cancellation and debt recovery decisions. In relation to his circumstances he writes:

I am 70 yrs (this year) and Sue is 67 yrs. Based on a life expectancy, we still have 11 yrs and 18 yrs respectively to support ourselves i.e. 22k each to draw down from our SMSF to ourselves or 14,500 each pa when split three ways with Tom.

The 'rejected' pension means that: I, at 70 yrs have to continue working to support my family. The work is manual in the western suburbs of Sydney with no air conditioning and at least 50 mins each way commute from home. In addition, I am being treated for high blood pressure, high cholesterol and have had a TIA (Transient Ischaemic Attack) which has affected my memory. Based on this condition and others, I have no confidence in how long I can maintain my employment...

I have earned only $16,000 in part time wages. I don't do this because I particularly enjoy it. I do it to support my family. Sue and I are drawing down twice the minimum pension from super to sustain ourselves. This means we have been forced to run down our super balance far more quickly than is ideal and it will not last for our life expectancies.

This unexpected and unjust financial impact has caused Sue through increased anxiety, wondering how we will provide for ourselves and Tom. This has resulted in a relapse of her mental health. This is a serious health issue, brought on by Centrelink.

1. The applicant and his wife own a house and are able to provide accommodation and support for their adult son. The applicant is not without access to a substantial self-managed superannuation fund, and has been able to substitute the loss of pension monies by drawing down on his retirement fund. This is an unfortunate state of affairs but it cannot be said that it creates a state of severe financial hardship at this time. There is no material before the Tribunal that suggests that by reason of present commitments the applicant is unable to maintain the house, buy food and clothing and provide for some additional expenses for his family. He is able to pursue a hobby by volunteering at an aviation museum on the south coast, requiring a lengthy commute by car. They do not appear to live in straightened circumstances. On a scale of hardship experienced by those receiving social security benefits to which they are entitled, the applicant, happily, would not experience severe financial hardship and has the present means to live even without a pension. The Tribunal is not able to accept the proposition that a repayment schedule would create severe financial hardship. In forming this view, the Tribunal has considered the applicant's capacity to work, his medical condition and those of his immediate family, and his overall asset position.

1. There are circumstances in which the right to recovery all or part of a debt may be waived. Section 1237AAD states that:

The Secretary may waive the right to recover all or part of a debt if the Secretary 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. There is nothing to suggest that the applicant knowingly made any false statement or representation or knowingly failed or omitted to comply with a provision of the Act. The question posed by s 1237AAD(b) is whether there are special circumstances, other than financial hardship alone, that justify the waiving of the loan, either in whole or part.
2. In Angelakos and Secretary, Department of Employment and Workplace Relations [2007] FCA 25 at [33], Besanko J noted that it was an overstatement to equate "special" circumstances with "exceptional" circumstances. It was not the intention of Parliament to confine the exercise of discretion to an exceptional case. His Honour noted that

...There is less risk of 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 medical issues suffered by the applicant and his wife and son are by no means trivial. They are undoubtedly complex and challenging, and it is a credit to the applicant that he is able to solider on despite the challenges in his life. The Tribunal was referred to correspondence from a treating clinical psychologist, Dr Ricco Crino, relating to these health conditions.
   1. Dr Crino states that the applicant's wife suffers from significantly depressed mood occurring against the background of a long-standing generalised anxiety disorder: Letter dated 8 December 2018.
   2. Dr Crino states that the applicant's son suffers from severe and debilitating Obsessive Compulsive Disorder with Psychotic features, and as at 4 March 2019, lives with his mother and father. Although he is able to work part-time under the supervision of his father, he would have notable difficulties with independent living: see letter dated 4 March 2019.
2. At the hearing, the applicant's accountant said, on the basis of knowing the family for years, that there was nothing ordinary about the challenges they face. Challenging as they are, such health challenges are neither uncommon nor unusual, especially amongst those seeking support via the age pension. Growing older and weaker with dwindling resources is something that defines our common humanity. Caring for an adult son with mental health issues is commendable but would not of itself constitute a special circumstance. The evidence suggests that the son is able to engage in some work under his father's supervision and that his mental health condition is relatively stable, although he would have difficulty with independent living.
3. There are features of this case that stand out: (1) the loss, always regretted, of a small business, ending in negative equity and financial tears; (2) the potency of the unrealisable million dollar "zombie" loan doing double damage in defeating the applicant's pension claim; (3) the error made by Centrelink in continuing to process an incomplete claim; (4) the significant period between the granting of the pension and its cancellation; (5) the serious and complex mental and physical health problems experienced by the applicant and his family, and especially his son; and (6) the absence of any suggestion of bad faith on the part of the applicant.
4. The Tribunal has carefully considered whether overall, and especially in light of these factors, there are special circumstances such that the case can be separated from the ordinary or usual case. Standing back and looking at this case from the broadest perspective, the Tribunal is not able to come to this conclusion.
5. The Tribunal considers that the case for remitting the loan by reference to "special circumstances" under s 1237AAD is not made out.

SOLE ATTRIBUTION OF ADMINISTRATIVE ERROR - S 1237A

1. The lack of vigilance by Centrelink has been commented upon by the ARO. This raises an issue as to whether the Secretary is legally required to waive the right to recover any overpayment by reason of s 1237A of the SSA Act. Section 1237A provides:

(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.

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).

1. Explanatory notes within the body of an enactment are taken to be part of the Act: Acts Interpretation Act 1901 (Cth), s 13(1). The reference to a debt being caused partly by administrative error and partly by one or more other factors suggests that s 1237A(1) raises issues of factual causation.
2. There is no doubt that s 1237A is capable of doing injustice. For example, in SAJ; Secretary, Department of Family and Community Services [2002] AATA 430 the applicant was burdened by an oppressive abusive partner who falsely misstated his income, resulting in an overpayment to her. Section 1237A was relied upon to no avail. Deputy President Forgie said at [36]:

Section 1237A(1) is not relevant as the debt is not attributable solely to an administrative error of the Commonwealth. It is attributable partly to it for it did not follow up SAJ's advice to it but it is not attributable solely to the Commonwealth's error for SAJ's partner falsely stated his position. My finding that Centrelink failed to follow up SAJ's advice is not a criticism of Mr Quici's actions in dealing with the information he was given. I am satisfied that he was simply following the practice of Centrelink not to follow up information that a payment recipient is required to give it. It may be that Centrelink's practice will not normally lead to grief for the information as to the amount of income will come from other sources if the person is receiving a social security payment or benefit under the Act. Where it does not, either innocently or fraudulently, a person such as SAJ who has acted innocently and has complied with her obligations will incur a debt through circumstances over which she has no control.

1. At the hearing of the present matter before the Tribunal, counsel for the Respondent argued that although the debt arose because of an element of error on the part of the Commonwealth, the applicant contributed to the error and therefore the requirements of s 1237A(1) were not satisfied. He argued that it was not open for the Tribunal to find that the error was solely attributable to an administrative error made by the Commonwealth. Specifically, he pointed to errors made by the applicant in completing the pension application form. It is necessary to examine this aspect of the case in some detail.
2. Counsel for the Respondent focusses on the applicant's non-responsiveness to two questions on the application form: Q 11 and Q 28. Question 11 on the Age Pension Application Form states

Do you (and/or your partner) have money on loan to another person or organisation?

1. The applicant might be forgiven for thinking in September 2014 that he did not have money on loan to another person or organisation because, realistically, the loan to his private company was worthless. Also, he might not have regarded his company as "another person or organisation" at all. The applicant answered neither 'Yes' nor 'No'. He did however, in Q 28, declare an interest in a private company. The subject of loans to a private company is dealt with at Q 28.
2. Question 28 states:

Are you or have you (and/or your partner) been involved in a private company?

1. The question gives a series of examples including the situation where money is loaned to a private company. It states: "You or partner may have made a loan to a private company." The applicant ticked the 'Yes' box and wrote: "NOT TRADING - COLLECTING DEBTORS ONLY".
2. Having answered 'Yes' to Question 28, the Application Form states:

You will need to complete and attach a Private Company Form (ModPC) and the latest individual and company tax returns, financial statements, profit/loss statement, balance sheets, depreciation schedules and all accompanying notes if you have not already given these to us. If you have not this form, go to our website...or call us...

1. The applicant did not provide the further information required by Q 28. That information was required because he had given an affirmative answer to Q 28.
2. At the hearing the applicant said that he did not fully understand the reference to ModPC. He said that he may have intended to return to Q 28 when he got to the end of the form and must have forgotten to do so.
3. Centrelink processed the application and determined (in the absence of the required information) that the applicant was eligible to receive a part pension.
4. The ARO acknowledged in 4 July 2018 that "there is an element of error on part of the department" in processing the incomplete claim and making the payments. The pension should not have been approved on the basis of incomplete information.
5. There is no doubt that the money was received by the applicant in good faith. This was not questioned by counsel for the Respondent. The question is whether the debt is "solely attributable to an administrative error made by the Commonwealth".
6. Counsel argued that the fact that the applicant failed to answer Q 11 at all or provide the details required by Q 28 must be regarded as at least a partial contributing factor leading to the payments and the creation of a debt. He referred to Secretary, Department of Family and Community Services v Sekhon [2003] FCA 76, where at [41] Wilcox J said:

...For the subsection to have effect, the 'proportion' of the debt - in this case, it is common ground, that would be the whole of it - must be 'attributable solely' to administrative error. It is not enough that, in the absence of administrative error, the debt would not have arisen. Administrative error must be the sole cause, not merely one of multiple causes.

1. The administrative error admitted by Centrelink was that it processed the form without acquiring the additional information of which it had been put on notice by the applicant's affirmative answer to Q 28. On the basis of incomplete information, it paid money to the applicant. It is true that without the administrative error by Centrelink, the debt would not have arisen. That, says the Federal Court, is not enough.
2. The Social Security Guide provides policy guidance on the operation of s 1237A. It provides (at 6.7.3.30):

When is a debt attributable solely to administrative error?

In general whenever a mistake has been made in administering a payment, the debt will arise 'solely to an administrative error' providing the recipient's conduct has not contributed to the debt in any way.

1. Having given some examples none of which applies to this case, the Guide continues:

The requirement that part of the debt must have arisen 'solely' from administrative error means that there must have been no other factors that caused the debt to arise or contributed to the debt arising. The part of the debt must have arisen as a result of administrative error alone.

1. Leaving aside the infelicitous wording of this statement, the Tribunal does not find the Guide helpful in relation to the present issue. This passage highlights but does not illuminate the critical question whether the tendering of an incomplete application form may be regarded as a "factor" as that word is used in the Note to s1237A(1).
2. In searching for the meaning of s 1237A one is guided by the comments of Burchett J in Cavell v Repatriation Commission (1988) 9 AAR 534 at 539 where the learned judge commented on the word "alone" appearing in s 24 of the Veterans' Entitlements Act 1986 (Cth) relating to incapacity from war-caused injury or disease alone. He said:

This is not to say, of course, that a paraphrase may not throw light into a dark corner of a statutory prescription. But the phrase used by the tribunal, to which objection is taken, involves an almost scholastic insistence upon analysis of the concept of singularity. The tendency of that is to distract the tribunal from its true task - to make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide.

1. In Re Gerhardt and Department of Employment, Education and Training [1996] AATA 173, Deputy President Forgie said at [40]:

There is nothing ... which indicates that any meaning should be given to "solely" other than its ordinary meaning. Applying those ordinary meanings to the sub-section mean that the Secretary must waive the right to recover the proportion of the debt that is attributable only to the Commonwealth's administrative error.

The Secretary's duty to waive does not extend to those debts which are attributable to errors or other factors which are independent of the Commonwealth's administrative error. It makes no difference that those other errors or factors are minor. If those other errors or factors follow as a result of the Commonwealth's administrative error (i.e. they are incidental to the Commonwealth's error), then it may be that the debt is attributable solely to the Commonwealth's administrative error. Whether it is or is not attributable in that situation to the Commonwealth's administrative error will be a question of fact (emphasis added).

1. These extracts illustrate that s 1237A is to be construed according to its ordinary meaning without nice philosophical distinctions but with common sense as a guide. One significant feature of this case stands out. One cannot explain the dilemma generated by the admitted facts without referring to the applicant's carelessness in not providing all necessary information and documentation during the process of applying for the pension. Does this make his failure to do so a relevant causal factor in light of the Centrelink processing error?
2. In Sekhon and Secretary, Department of Family and Community Services [2003] FCAFC 190 at [35] Selway J said that:

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.

1. In terms of an "objective" assessment of causation, the following facts were objectively established by the evidence:
   1. The applicant filled out a pension application form;
   2. The application left two questions wholly or partially unanswered;
   3. Information provided in response to Q 28 did point to the existence of a private company;
   4. Centrelink needed information about that company in order to make a valid determination;
   5. Centrelink determined without that information that the applicant should receive an age pension;
   6. The pension was approved and paid to the applicant.
2. The applicant points to the fifth element in support of the proposition that the error is solely attributable to an administrative error by Centrelink. Counsel for the Respondent says the second element points to shared blame. The applicant did not provide, as part of his initial application, information expressly required by reason of his affirmative answer to Question 28. The overpayment cannot be solely attributed to Centrelink, he says.
3. If the applicant had provided the information at the time he filled out the application, as he should have done, Centrelink would have calculated that he was not entitled to the pension at the given rate and no debt would have been created. Centrelink in effect invites the Tribunal to find that had the information been provided, the applicant's pension would not have been approved and the debt would not have been created.
4. The difficulty with this argument is that it is highly speculative. Counsel says that the debt would not have been created had the information been provided. But the circumstances suggest no more than that the debt might not have arisen had the failure not occurred, assuming that Centrelink had then processed the application correctly. Is this enough?
5. The Tribunal did not receive evidence as to the circumstances in which the decision to pay the pension to the applicant was made. It may have been the result of factors that had nothing to do with the information deficit contained in the application form. No evidence was presented to the Tribunal on this point. In any event, the processing pointed to an administrative error by Centrelink. It is an act of faith to assume that the processing would have led to a different result had the true state of affairs regarding company assets been known. If no more is established that a debt might not have been created had the applicant provided certain information, the conclusion is speculative.
6. As to Q 11, failing to answer a particular question might, in some circumstances, give rise to a particular inference. If, for example a person is required to declare their income and does not enter any amount, it may be reasonable to infer that they have no income. In Wendt and Secretary, Department of Social Security [1998] AATA 571 the applicant left blank an answer to a question relating to her income, leading to the inference that she had no income. It could not be said in those circumstances that the error was solely attributable to Centrelink. One hastens to say that in the absence of a clear and express statement treating no answer as equivalent to a no-income declaration, drawing such inferences could hardly if ever be described as good administrative practice.
7. The present case is distinguishable from the following sorts of cases:
   1. Cases where the applicant fails to disclose critical information: see for example Jordan v Secretary, Department of Family and Community Services [2004] FCA 1582 (failure to disclose NEIS payments); Phelps and Department of Family and Community Services [2000] AATA 638 (failure to disclose that he was a full-time student receiving AUSTUDY);
   2. Cases where the applicant provides misleading information: see for example, "SRUU" & "SRVV" and Department of Family and Community Services [2001] AATA 581 (undervaluation of assets contained within inaccurate financial statements);
   3. Cases where the applicant fails to notify the Respondent of the existence of companies or loans shown in the company financial statements: see for example Cziesche and Secretary, Department of Family and Community Services [2003] AATA 1232, where the section was held not to apply. The existence of corporate interests was not disclosed at all, see especially paragraph [60];
   4. Cases where the applicant has provided an incorrect answer based on advice given by Centrelink officers: see for example, Re Secretary, Department of Social Security and Martin Mcavoy [1996] AATA 331. The applicant was enrolled as a full-time student in a doctoral program at the University of Sydney, but after seeking advice from his Centrelink Case Manager he completed a claim form for Jobsearch and Newstart Allowance by stating that his enrolment was not full-time. Section 1237A(1) barred recovery by the Commonwealth;
   5. Cases where failure by the applicant to answer a question by simply leaving it blank leads of itself to a particular inference: see for example, Wendt and Secretary, Department of Social Security [1998] AATA 571;
   6. Cases where Centrelink is required to perform some further complex valuation process in order to determine eligibility and entitlement, such as the valuation of a share portfolio: see Meyer; Secretary, Department of Family and Community Services [2004] AATA 240, at [36]-[39].
8. The present facts have some similarity with the following two cases where s 1237A was successfully relied upon by the applicant: Re Lohner and Secretary, Department of Social Security [1994] AATA 676; and Re Bazley and Secretary, Department of Family and Community Services [2002] AATA 593.
9. In Re Lohner the applicant and his wife advised the Department that the wife was in receipt of payments from another Government Department, but this advice was not followed up by Departmental officers. The Department sought to recover a substantial overpayment. The Tribunal (at [17]) found that the circumstances leading to the overpayment arose solely from Departmental error:

17. ...(1) At the time of lodging his claim for Unemployment Benefit the applicant was issued with a Module P for his wife to complete. She completed this Module indicating at question 21 that she was in receipt of a payment from another Government Department. The response of 'Yes' to this question should have alerted the Department to provide the applicant and his wife with a Module I in order to obtain further details about that payment, but this was not done;

(2) The applicant then assumed that as he had advised the Department his wife received a War Widow's Pension, he did not have to further advise of this fact on his income statements;

(3) The applicant's rate of payment did not take into account his wife's War Widow's Pension; and

(4) Due to the failure by Departmental officers to properly carry out their duties, the applicant was paid an excess of benefits for which the Department must accept sole responsibility...

1. In Re Bazley at [34] the Tribunal found that there was administrative error on the part of the respondent in not investigating the applicant's indication on the claim that she was doing "other work"...and that having been "furnished with information which it had an obligation to examine and if necessary, clarify, in order for it to make a finding as the applicant's entitlement to carer pension, yet it failed to do so..." The Tribunal noted at [37] that:

If there was any uncertainty, then Centrelink had a duty to clarify that uncertainty.

1. It is not immediately obvious on which side of the line this case falls. After careful consideration the Tribunal considers that the language used by Deputy President Forgie in Re Gerhardt is appropriate, and finds that the applicant's failure to answer Q 11 or provide the corporate information required by Q 28 was incidental to Centrelink's administrative error. The applicant's failure to provide the additional information required by Q 28 provides the setting within which the Centrelink administrative error occurred. In some trivial sense the overpayment would not have occurred but for the lodging of an application form. Nevertheless, it was the action by Centrelink in processing an incomplete application form, where no inference could reasonably be drawn as to the assets available to the corporation the existence of which was disclosed in the form itself, that is the administrative error in question; and the Tribunal finds as a matter of fact that the overpayment is attributable solely to an administrative error made by the Commonwealth. Centrelink had a positive obligation to stop processing what was in effect an incomplete application form, and it failed to do so. To be clear, Centrelink was not required to use its resources to track down, identify and value corporate assets thus identified. Its duty was to stop processing and call for the information mandated by Q 28 from the applicant. It did not do so and for this it is solely responsible.
2. Although the applicant's failure to provide the information preceded the decision to approve the pension, nothing turns on this. Centrelink did not have the requisite information to justify paying the pension to the applicant and should, in light of the applicant's affirmative answer to Q 28, have suspended the process until that information was provided. It did not do so, and in not doing so the overpayment is solely attributable to it. The null answer to Q 11 was not relevant to the fundamental error made by Centrelink in continuing to process the form once the applicant had answered Q 28 in the affirmative. As noted in the amplifying notes in the margin of Q 28, loans to a private company was an instance requiring an affirmative answer to Q 28.

1. Counsel for the Respondent argued that even on the footing that the initial decision was the result of sole administrative error, the position changed from the date the applicant received his first Centrelink pension notice, which contains instructions to report any change of circumstances. There are many cases where the reach of s 1237A has been curtailed by the applicant's subsequent failure to inform Centrelink of a change of circumstances. For example, in Jonauskas; Secretary, Department of Family and Community Services [2001] AATA 72 (6 February 2001) the applicants provided accurate income information at the time of application, which the Department misread, but they later failed to notice or correct the departmental error. In Salsone and Secretary, Department of Family and Community Services [2002] AATA 1117; s 1237A applied where the applicant disclosed superannuation income along with other income in the original application but failed to correct the pension calculation in the Grant letter based only on other income. The Grant letters requested that a recipient was to notify Centrelink within 14 days if the combined yearly income figure was incorrect.
2. In Angelakos; Secretary, Department of Employment and Workplace Relations [2006] AATA 220 at [25] the Tribunal stated:

There can be no question that the respondent did not receive the Parenting Payment that was overpaid in good faith. He believed he had done nothing wrong. Ms Riley submitted that the debt was attributable solely to an administrative error made by the Department. The Tribunal accepts that there were administrative errors made by the Department in processing the respondent's claim. However, the Tribunal does not accept that the respondent did not contribute to the error that gave rise to the overpayment. Even if it is accepted that the respondent's failure to ask for a Module R from Centrelink when he completed his application form in March 2002 did not contribute to the error, the Tribunal does not accept that his failure to advise Centrelink of the increase in his assets (other than financial investments) when he received the notification letter dated 4 April 2002 did not contribute to the error and to the overpayment. The fact that the respondent failed to thoroughly read the notification letter cannot excuse him from his obligation to notify Centrelink about a matter that might effect the payment to him of the Parenting Payment.

1. In Groves and Secretary, Department of Family and Community Services [2005] AATA 235 at [39] the Tribunal stated:

39. In the present case I am satisfied on the evidence that the applicant did not in fact read all of the notices that he received from Centrelink and that the evidence that he gave to the SSAT is an accurate reflection of his approach to them. I am satisfied that the applicant knew from the application forms that he completed that his assets situation was relevant to his ongoing entitlement to PP and the amount of such benefits that he would receive. His failure to provide Centrelink with the information needed concerning the changes to his assets situation was primarily due to his failure to read and understand the notification requirements to which he was subject. His failure to read carefully the fortnightly notifications meant that, even if the change in format of the notices constituted an administrative error, the debt was principally attributable to his failure to provide information. It cannot be said that the debt is solely attributable to administrative error on the part of Centrelink.

1. Most recently in Stafford and Secretary, Department of Social Services (Social services second review) [2018] AATA 2746 at [78] the Tribunal noted:

78. It is at least arguable that, had the Applicant fully complied with the reporting requirements imposed on him, the debt for which he now finds himself liable might not have accrued. Without further evidence it is ultimately impossible to determine if this would have been the case. However, it is certainly not the case that, given his failure to comply with the reporting requirements made clear in the notices sent to them, the debt in question can be blamed solely on an administrative error on the part of the Commonwealth.

79. In the circumstances, section 1237A of the Act has no application to the facts of this case and the debt in question cannot be waived under section 1237A of the Act.

1. None of these cases are directly comparable to the instant case. In this case there was no objective change in the applicant's asset position, and therefore there was nothing to report. At all relevant times the loan existed as an unrealisable asset. Having been paid the pension on the basis that the information tendered by him in his original application was sufficient, and in light of his belief that the loan was a worthless asset, there was simply nothing to report by way of change in circumstance.

1. Counsel for the respondent argued that it would not be open for the Tribunal to find, as a matter of fact, that submitting an incomplete form did not contribute to the overpayment; or that the overpayment is solely attributable to an administrative processing error by Centrelink. With great respect, in the specific circumstances of this case, the Tribunal finds otherwise.
2. The Tribunal finds that the decision to pay the pension in September 2014 is solely attributable to an administrative error by the Commonwealth. Therefore the decision to raise a debt for $19,592.97 is set aside. All monies recovered by the Commonwealth by way of debt repayment should be returned to the applicant.
3. Finally, the Tribunal wishes to note that, at the close of argument, the Tribunal asked counsel for the Respondent to provide additional case authorities relevant to the sole attribution issue in s 1237A. Counsel provided a very helpful addendum. The Tribunal wishes to acknowledge the assistance derived from this further submission.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

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

[1] All statute references are to this Act unless otherwise indicated.

[2] The terminology of 'rejection' was unfortunate in that Centrelink had no authority to retrospectively reject his claim; but in essence the notice informed the applicant that his pension was cancelled and that Centrelink was seeking to recover the overpayment as a debt owed by the applicant to Centrelink.