1. One must recognise the difficulty that has been encountered in the many attempts to formulate and apply a principled and consistent approach to the exercise of the s 1184K discretion. The difficulty is readily apparent by the contrast between the passage I have just cited from the decision Jeffrey and the earlier passages from the reasoning in Smith. In the passage just cited the proposition apparently implemented is that the strict application of the legislation cannot give rise to an unjust result and therefore the postulated injustice cannot amount to "special circumstances". Even though it has been stated with the "by itself" qualification, it retains a rigidity that contrasts with the earlier decisions in Smith and Kertland. In the former, von Doussa J explicitly contemplated that the s 17(3)(a) formula could produce a result that was so unfair as to be beyond what could be justified by the arbitrary nature of the provision: see Smith (1991) 30 FCR 56 at [17].
2. The possibility recognised by von Doussa J seems particularly realistic in the case of a catastrophically injured person. In the ordinary course of events their general damages, special expense needs and care costs, will likely dwarf any work incapacity compensation. This will certainly be the case where the person already had a limited work capacity at the time of the injury. If, in such a situation, the settlement payment is also affected by a liability risk discount, or a reduction for contributory negligence, the prospect of the "compensation part" formula causing real unfairness is not difficult to appreciate. Even without discounts of those kinds, all of their compensation for future loss will have been compensated on the basis of discounted present values. If the person is required to fund substantial social security repayments from a discounted compensation amount, there is again a real scope for consequential unfairness.
3. The prospect of unfairness is not confined to the catastrophically injured. In Lee v Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 372 the Applicant was a student who had been injured in a motor vehicle accident. She subsequently received youth allowance, during her college course, and Newstart allowance (during a brief period of unemployment unrelated to her injuries). Her claim for past economic loss was $22,000. It most likely related only to the period after completion of her studies. Her claim for future economic loss was between $300,000-$537,000. These claims were disputed (save to the extent of $875 for loss of income). In the end result she settled the damages claim for $150,000.
4. In the Tribunal review proceedings the only matter in issue was the Secretary's claim to recover benefit payments totalling $11,660 (the calculated preclusion period having expired in any event). The Tribunal found that the settlement sum included a small component for lost earnings and some small sum for future economic loss. The balance, and thus the preponderance, of the settlement payment was required to meet her ongoing medical expenses. Nevertheless, in rejecting the claim for favourable exercise of the s 1184K discretion the Tribunal said:

[21] So far as the Applicant's personal circumstances are concerned, while I acknowledge that she has ongoing and not insubstantial expenditure as a result of the injuries she suffered in the motor vehicle accident, her circumstances could not be described as "special" in the sense that they are in some way out of the ordinary or unusual.

[22] What I do agree is unusual and unfair is the effect of the arbitrary imposition of a 50% calculation figure in this particular Applicant's case. ...

[23] As pointed out by Kiefel J in Chamberlin supra, any disparity between the 50% formulae and the Applicant's actual economic loss cannot amount to a special circumstance. Free of that authority, I would hold that it did.

1. An important part of the reasoning in Chamberlain was the "by itself" qualification. If the bulk of a compensation settlement payment has in fact been paid or is required for medical expenses that cannot otherwise be met, that might possibly be a foreseeable consequence of the arbitrary s 17(3)(a) definition of the "compensation part". But the mere foreseeability of such a possibility does not foreclose enquiry about "special circumstances". Such a demonstrable need might well contribute towards a conclusion that "special circumstances" did indeed exist in the particular case.
2. A case that illustrates that possibility is Welch and Secretary, Department of Family and Community Services, Re [2003] AATA 905; (2003) 78 ALD 550. The case involved a claim arising out of a catastrophic motor vehicle accident. The Applicant, who had been gravely injured, compromised his claim for $1.4m. That amount had been determined after giving effect to a 65% reduction for contributory negligence. The reduction indicated that his total potential damages were close $4m. The compromise was given effect by a court approved settlement. The approval was informed by a counsel's opinion that isolated the compensation components for past and future economic loss. That opinion assessed his total work incapacity losses as $878,000 and the settlement component of those losses (after the reduction for contributory negligence) as $304,000. This was very substantially below the $704,000 "compensation part" determined in accordance with s 17(3)(a) of the Act. In relation to this evidence the Tribunal said:

[56] In the present case there is no doubt that Bryce was compensated for the loss of past and future income. In the period between the date of accident and the date of settlement the lost income was assessed (after taking into account the contributory negligence) as approximately $99,000 and Centrelink recovered approximately $75,000 of that amount. For that period, at least, it cannot be said that the Part 3.14 regime has operated unfairly or unjustly. However, when the situation as a whole is considered, it can be seen that Bryce recovered a total of $304,174 for past and future economic loss (or approximately 21.6% of the total compensation amount) whereas the statutory formula required 50% of the total amount to be taken to be in respect of past and future economic loss.

[57] Chamberlain (above) is authority for the proposition that the fact that the statutory formula operates in that way - to result in a large difference between what was offered and accepted by way of the economic loss component and the amount that the statute assumed to be the case - can not, of itself, provide the necessary special circumstance. The difference between the agreed economic loss component and the statutory amount in the present case cannot, therefore, be considered as a special circumstance.

1. The Tribunal then went on to consider Mr Welch's particular needs, and the extent to which he would depend in the future on the adequacy of the compensation amounts awarded in the Court approved settlement. The Tribunal said:

[62] In my opinion, having regard to Bryce's medical conditions (which I consider to be exceptional and out of the ordinary), his complete inability to provide for himself physically or financially (other than through the trust fund), his parent's age and declining ability to care for him (physically and financially), and his probable need for increasingly expensive care arrangements, Bryce's situation can indeed be described as out of the ordinary and exceptional. It would, therefore, be appropriate, in my opinion, to treat some part of the compensation payment as not having been made. The question is what proportion of the amount should be so treated?

[63] Although, for the reasons set out above, the difference between the amount Bryce actually received for past and future economic loss and the statutory amount could not be regarded, of itself, as a special circumstance, the fact remains that in this case Bryce's advisers, with the assistance of counsel, carefully considered what amount could reasonably be expected to be awarded by a Court as economic loss had there been a trial on the question of quantum. The Court clearly must have been satisfied that all the relevant factors had been considered and that the amounts were within the range of what a court would have awarded.

[64] In that sense the amount of the past and future economic loss component in the agreed settlement is the best estimate available to me of what Bryce's loss actually was. In my opinion a preclusion period that reflects that reality would be, in the special circumstances of the case, a fair outcome. It would mean that the length of the preclusion period did match the amount actually received. In that sense it would, as far as practicable, give effect to the objective that there should be no double-dipping by those who receive compensation payments and then seek social security benefits.

1. The result in Welch's case, properly understood, reflects a situation in which the "by itself" qualification in the Chamberlain reasoning, permits careful regard to the Applicant's personal circumstances and to the "true facts" (i.e., the best assessment) of the actual amount of the compensation payment that represented the compensation component for work incapacity.

Exercise of the S 1184K discretion in Mr Topp's circumstances

1. The remaining question for determination, having regard to my earlier findings that special circumstances do exist, is whether it is appropriate to treat any part of the compensation payment as not having been made.
2. The principal basis for my finding that "special circumstances" apply to Mr Topp's settlement payment is that it does not include compensation for any part of his statutory preclusion period. For that reason, consistent with the decisions in Smith and Kertland, the s 1184K discretion should be exercised so as to treat the whole of his compensation payment as not having been made.
3. I would exercise the discretion in the same way in relation to the additional basis on which I consider that special circumstances apply to Mr Topp. His June 2008 settlement payment can now be regarded as having the following components:

1. Mr Topp has ongoing expenses related to his disability, and his study. Expressed as annualised expenses they include the following.

1. Mr Topp's notional investment income is calculated on a payment balance that includes components for general damages, and costs associated with any ongoing care and treatment particularly related to his September 2003 injuries. Even so, on the basis of the financial analysis reflected in the preceding details, Mr Topp's income, confined to the notional income he presumably derives from the settlement fund balance currently invested on term deposit, is quite insufficient to meet his special disability needs. It is inadequate to meet in addition, his other ordinary expenses. Even though he lives alone in a rent free house provided by his parents, his other living expenses must be substantial. They include contributing to the costs of maintaining his infant son. There is no evidence that Mr Topp has any significant assets and, having regard to the nature, extent and duration of his disabilities, I would infer he has none.
2. Up until 6 January 2010 (the end of the exclusion period imposed by the Social Security Act 1991) the only way apparently available to Mr Topp to fund this expenditure shortfall was to apply part of the settlement balance to his current needs. The fact that he did so presumably accounts for the approximate amount of $20,000 for subsequent disbursements, in the table I have set out earlier.
3. Mr Topp's financial situation will improve with the end of his exclusion period. However, in the additional special circumstances I have described, and taking into account his financial situation, I consider the preferable exercise of the discretion in his circumstances is to treat the whole of the compensation payment as not having been made.

1. The decision under review is set aside. In substitution for the decision under review the Tribunal determines that it is appropriate in the special circumstances of Mr Topp to treat the whole of the 10 June 2008 compensation payment of $500,000 as not having been made.

I certify that the 141 preceding paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member.

Signed: ......[sgd]...............................................................

Solicitor for the Applicant: Mr Niall Connolly, Niall Connolly Lawyers

Solicitor for the Respondent: Mr Mark Nicoletti, Centrelink Legal Services

SOCIAL SECURITY ACT 1991

(2) Subject to subsection (2B), for the purposes of this Act, compensation means:

(b) a payment under a scheme of insurance or compensation under a Commonwealth, State or Territory law, including a payment under a contract entered into under such a scheme; or

(c) a payment (with or without admission of liability) in settlement of a claim for damages or a claim under such an insurance scheme; or

(whether the payment is in the form of a lump sum or in the form of a series of periodic payments and whether it is made within or outside Australia) that is made wholly or partly in respect of lost earnings or lost capacity to earn resulting from personal injury.

(3) Subject to subsection (4), for the purposes of this Act, the compensation part of a lump sum compensation payment is:

(a) 50% of the payment if the following circumstances apply:

(i) the payment is made (either with or without admission of liability) in settlement of a claim that is, in whole or in part, related to a disease, injury or condition; and

(ii) the claim was settled, either by consent judgment being entered in respect of the settlement or otherwise; or

(ab) 50% of the payment if the following circumstances apply:

(i) the payment represents that part of a person's entitlement to periodic compensation payments that the person has chosen to receive in the form of a lump sum; and

(ii) the entitlement to periodic compensation payments arose from the settlement (either with or without admission of liability) of a claim that is, in whole or in part, related to a disease, injury or condition; and

(iii) the claim was settled, either by consent judgment being entered in respect of the settlement or otherwise; or

(b) if those circumstances do not apply - so much of the payment as is, in the Secretary's opinion, in respect of lost earnings or lost capacity to earn, or both.

95 Qualification for disability support pension - permanent blindness

(1) A person is qualified for a disability support pension if:

(i) is an Australian resident at the time when the person first satisfies paragraph (a); or

(ii) has 10 years qualifying Australian residence; or

(iia) has a qualifying residence exemption for a disability support pension; or

(iii) is born outside Australia and, at the time when the person first satisfies paragraph (a), the person:

(B) is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident.

Note: for Australian resident and qualifying Australian residence see section 7.

(2) A person is not qualified for a disability support pension on the basis of blindness if the person brought about the blindness with a view to obtaining a disability support pension or a sickness allowance or with a view to obtaining an exemption, because of the person's blindness, from the requirement to satisfy the activity test for the purposes of job search allowance, newstart allowance, youth training allowance, youth allowance or austudy payment.

Division 5 - Rate of disability support pension

117 How to work out a person's disability support pension rate

A person's disability support pension rate is worked out:

(a) if the person is not permanently blind and paragraph (b) does not apply to the person - using Pension Rate Calculator A at the end of section 1064 (see Part 3.2); or

(b) if the person is not permanently blind, has not turned 21 and does not have any dependent children - using Pension Rate Calculator D at the end of section 1066A (see Part 3.4A); or

(c) if the person is permanently blind and paragraph (d) does not apply to the person - using Pension Rate Calculator B at the end of section 1065 (see Part 3.3); or

(d) if the person is permanently blind, has not turned 21 and does not have any dependent children - using Pension Rate Calculator E at the end of section 1066B (see Part 3.4B).

Chapter 3** - General provisions relating to payability and rates**

1065 Rate of age and disability support pension and of disability wage supplement (blind people)

(a) age pension payable to a person who is permanently blind; and

(b) disability support pension payable to a person who:

(c) disability support pension payable to a person who:

is to be calculated in accordance with the Rate Calculator at the end of this section.

Note 1: Module A of the Rate Calculator establishes the overall rate calculation process and the remaining Modules provide for the calculation of the component amounts used in the overall rate calculation.

(1) This Part operates in certain specified circumstances to do one or more of the following:

(a) reduce a person's compensation affected payment;

(b) render a person's compensation affected payment not payable;

(c) require the repayment of some or all of a person's compensation affected payment;

because of the receipt of compensation by the person or the person's partner.

(2) This Part applies whether or not there is any connection between the circumstances that give rise to the person's qualification for the compensation affected payment and the circumstances that give rise to the receipt of compensation by the person or the person's partner.

(1) Subject to subsections (2) to (7), payments of a compensation affected payment are affected under this Part if:

(a) whether the compensation was received before or after the commencement of this Part, the compensation affected payment is:

(i) a newstart allowance in relation to which, under Subdivision BA of Division 1 of Part 2.12, the recipient of the allowance is not required to satisfy the activity test; or

(iv) a rehabilitation allowance under the 1947 Act payable in place of sickness benefit under the 1947 Act; or

(b) in the case of any other kind of compensation affected payment, the compensation was received on or after 1 May 1987 and the claim for the compensation affected payment was made on or after 1 May 1987.

A provision of this Division that refers to a person receiving or claiming a compensation affected payment and receiving a lump sum compensation payment has effect regardless of whether the lump sum compensation payment was received before or after the person received or claimed the compensation affected payment.

1169 Compensation affected payment not payable during lump sum preclusion period

(a) a person receives or claims a compensation affected payment; and

(b) the person receives a lump sum compensation payment;

the compensation affected payment is not payable to the person in relation to any day or days in the lump sum preclusion period.

lump sum compensation payment does not include a lump sum payment:

(b) that relates only to arrears of periodic compensation payments.

(1) Subject to subsection (2), if a person receives both periodic compensation payments and a lump sum compensation payment, the lump sum preclusion period is the period that:

(a) begins on the day following the last day of the periodic payments period or, where there is more than one periodic payments period, the day following the last day of the last periodic payments period; and

(b) ends at the end of the number of weeks worked out under subsections (4) and (5).

(2) If a person chooses to receive part of an entitlement to periodic compensation payments in the form of a lump sum, the lump sum preclusion period is the period that:

(a) begins on the first day on which the person's periodic compensation payment is a reduced payment because of that choice; and

(b) ends at the end of the number of weeks worked out under subsections (4) and (5).

(3) If neither of subsections (1) and (2) applies, the lump sum preclusion period is the period that:

(a) begins on the day on which the loss of earnings or loss of capacity to earn began; and

(b) ends at the end of the number of weeks worked out under subsections (4) and (5).

(4) The number of weeks in the lump sum preclusion period in relation to a person is the number worked out using the formula:

(5) If the number worked out under subsection (4) is not a whole number, the number is to be rounded down to the nearest whole number.

1171 Deemed lump sum payment arising from separate payments

(a) a person receives 2 or more lump sum payments in relation to the same event that gave rise to an entitlement of the person to compensation (the multiple payments); and

(b) at least one of the multiple payments is made wholly or partly in respect of lost earnings or lost capacity to earn;

the following paragraphs have effect for the purposes of this Act and the Administration Act:

(c) the person is taken to have received one lump sum compensation payment (the single payment) of an amount equal to the sum of the multiple payments;

(d) the single payment is taken to have been received by the person:

(i) on the day on which he or she received the last of the multiple payments; or

(ii) if the multiple payments were all received on the same day, on that day.

(2) A payment is not a lump sum payment for the purposes of paragraph (1)(a) if it relates exclusively to arrears of periodic compensation.

1172 Lump sum compensation not counted as ordinary income

If an amount of a compensation affected payment is not payable to a person under section 1169 because the person has received a lump sum compensation payment, that lump sum compensation payment is not to be regarded as ordinary income of either the person or the person's partner (if any) for the purposes of a provision of this Act, other than point 1071A-4.

1173 Effect of periodic compensation payments on rate of person's compensation affected payment

(a) a person receives periodic compensation payments; and

(b) the person was not, at the time of the event that gave rise to the entitlement of the person to the compensation, qualified for, and receiving, a compensation affected payment; and

(c) the person receives or claims a compensation affected payment in relation to a day or days in the periodic payments period;

the rate of the person's compensation affected payment in relation to that day or those days is reduced in accordance with subsection (2).

(2) The person's daily rate of compensation affected payment is reduced by the amount of the person's daily rate of periodic compensation.

(3) The reference in subsection (2) to a daily rate of periodic compensation is a reference to the amount worked out by dividing the total amount of the periodic compensation payments referred to in paragraph (1)(a) by the number of days in the periodic payments period.

(a) a person receives periodic compensation payments; and

(b) at the time of the event that gave rise to the entitlement of the person to compensation, the person was qualified for, and was receiving, a compensation affected payment; and

(c) the person receives or claims a compensation affected payment in relation to a day or days in the periodic payments period;

the periodic compensation payments are to be treated as ordinary income of the person for the purposes of this Act.

1175 Rate reduction under both income/assets test and this Part

If the rate of a person's compensation affected payment is reduced under this Part, the reduction applies to the person's rate as reduced under the ordinary income test Module or the assets test Module of the relevant Rate Calculator.

1176 Periodic compensation not counted as ordinary income

If an instalment of a compensation affected payment payable to a person is reduced under section 1173 because of the receipt of periodic compensation payments, those payments are not to be regarded as ordinary income of the person for the purposes of a provision of this Act, other than point 1071A-4.

(a) a person is liable to make a compensation payment to another person; or

(b) an authority of a State or Territory has determined that it will make a compensation payment to another person, whether or not it is liable to make the payment;

then, for the purposes of this Division, in relation to the person to whom the compensation is payable or is to be paid, the following paragraphs have effect:

(c) a reference to the lump sum preclusion period is a reference to the period that would represent the lump sum preclusion period if the compensation were paid in accordance with the liability or determination;

(d) a reference to the periodic payments period is a reference to the period that would represent the periodic payments period if the compensation were paid in accordance with the liability or determination.

Subdivision B - Recovery from recipient of compensation affected payment

1178 Repayment of amount where both lump sum and payments of compensation affected payment have been received

(a) a person receives a lump sum compensation payment; and

(b) the person receives payments of a compensation affected payment in relation to a day or days in the lump sum preclusion period;

the Secretary may, by written notice to the person, determine that the person is liable to pay to the Commonwealth the amount specified in the notice.

(2) The amount to be specified in the notice is the recoverable amount under section 1179.

The recoverable amount under this section is equal to the smaller of the following amounts:

(a) the compensation part of the lump sum compensation payment;

(b) the sum of the payments of the compensation affected payment made to the person in relation to a day or days in the lump sum preclusion period.

1180 Repayment where both periodic compensation payments and payments of compensation affected payment have been received

(a) a person receives periodic compensation payments; and

(b) the person was not, at the time of the event that gave rise to the entitlement of the person to the compensation, qualified for, and receiving, a compensation affected payment; and

(c) the person receives payments of a compensation affected payment in relation to a day or days in the periodic payments period; and

(d) the payments referred to in paragraph (c) have not been reduced to nil as a result of the operation of section 1173;

the Secretary may, by written notice to the person, determine that the person is liable to pay to the Commonwealth the amount specified in the notice.

(2) The amount to be specified in a notice for the purpose of subsection (1) is the recoverable amount under section 1181.

(1) Subject to subsection (2), the recoverable amount under this section is equal to the smaller of the following amounts:

(i) the sum of the compensation affected payments made to the person in relation to a day or days in the periodic payments period; and

(ii) the sum of the compensation affected payments that would have been made to the person in relation to any such day or days had those payments been made at the rate to which the payments were reduced as a result of the operation of section 1173.

(b) the person's partner receives a compensation affected payment in relation to a day or days in the periodic payments period;

the recoverable amount under this section is equal to the smaller of the following amounts:

(i) the sum of the compensation affected payments made to the person and the person's partner in relation to a day or days in the periodic payments period; and

(ii) the sum of the compensation affected payments that would have been made to the person and the person's partner in relation to any such day or days had those payments been made at the rates to which the payments were reduced as a result of the operation of sections 1173 and 1174.

Subdivision C** - Recovery from compensation payers and insurers**

1184 Secretary may send recovery notice to compensation payer or insurer

(i) is liable to pay compensation to a person (a claimant); or

(ii) where the compensation payer is an authority of a State or Territory, has determined that a payment by way of compensation is to be made to a claimant; and

(b) the claimant has received a compensation affected payment in relation to a day or days in the periodic payments period or the lump sum preclusion period, as the case may be;

the Secretary may give written notice to the compensation payer that the Secretary proposes to recover from the compensation payer the amount specified in the notice.

(a) an insurer is liable, under a contract of insurance, to indemnify a compensation payer against any liability arising from a person's claim for compensation; and

(b) the person has received a compensation affected payment in relation to a day or days in the periodic payments period or the lump sum preclusion period, as the case may be;

the Secretary may give written notice to the insurer that the Secretary proposes to recover from the insurer the amount specified in the notice.

(3) If a compensation payer or insurer is given notice under subsection (1) or (2), as the case may be, the compensation payer or insurer is liable to pay to the Commonwealth the amount specified in the notice.

(4) The amount to be specified in the notice is the recoverable amount under section 1184A.

(5) A notice under this section must contain a statement of the effect of section 1184D so far as it relates to such a notice.

(6) This section applies to an amount payable by way of compensation in spite of any law of a State or Territory (however expressed) under which the compensation is inalienable.

(1) If a person receives compensation affected payments in relation to a day or days in a lump sum preclusion period, the recoverable amount under this section is equal to the smallest of the following amounts:

(a) the sum of all compensation affected payments made to the person that relate to a day or days in a lump sum preclusion period;

(c) in the case of a compensation payer - the maximum amount that the compensation payer is liable to pay to the person in relation to the matter at any time after receiving:

(i) a notice under section 1182 in relation to the matter; or

(ii) if the compensation payer has not received a notice under section 1182 - the notice under section 1184 in relation to the matter;

(d) in the case of an insurer - the maximum amount for which the insurer is liable to indemnify the compensation payer in relation to the matter at any time after receiving:

(i) a notice under section 1182 in relation to the matter; or

(ii) if the insurer has not received a notice under section 1182 - the notice under section 1184 in relation to the matter.

(a) a person receives compensation affected payments in relation to a day or days in a periodic payments period; and

(ii) the person's partner neither receives nor claims a compensation affected payment in relation to any day in the periodic payments period;

the recoverable amount under this section is equal to the smallest of the following amounts:

(i) the sum of all compensation affected payments made to the person that relate to a day or days in a periodic payments period; and

(ii) the sum of all compensation affected payments that would have been made to the person in relation to any such day or days had those payments been reduced in accordance with section 1173;

(d) the sum of the amounts of the periodic compensation payments;

(e) in the case of a compensation payer - the maximum amount that the compensation payer is liable to pay to the person in relation to the matter at any time after receiving:

(i) a notice under section 1182 in relation to the matter; or

(ii) if the compensation payer has not received a notice under section 1182 - the notice under section 1184 in relation to the matter;

(f) in the case of an insurer - the maximum amount for which the insurer is liable to indemnify the compensation payer in relation to the matter at any time after receiving:

(i) a notice under section 1182 in relation to the matter; or

(ii) if the insurer has not received a notice under section 1182 - the notice under section 1184 in relation to the matter.

(a) the person claiming compensation is a member of a couple; and

(b) compensation affected payments received by the person were received in relation to a day or days in a periodic payments period; and

(c) the person's partner receives a compensation affected payment in relation to a day or days in the periodic payments period;

the recoverable amount under this section is equal to the smallest of the following amounts:

(i) the sum of all compensation affected payments made to the person and the person's partner in relation to a day or days in the periodic payments period; and

(ii) the sum of all compensation affected payments that would have been made to the person and the person's partner in relation to any such day or days had those payments been reduced as a result of the operation of section 1173 or 1174;

(e) the sum of the amounts of the periodic compensation payments;

(f) in the case of a compensation payer - the maximum amount that the compensation payer is liable to pay to the person in relation to the matter at any time after receiving:

(i) a notice under section 1182 in relation to the matter; or

(ii) if the compensation payer has not received a notice under section 1182 - the notice under section 1184 in relation to the matter;

(g) in the case of an insurer - the maximum amount for which the insurer is liable to indemnify the compensation payer in relation to the matter at any time after receiving:

(i) a notice under section 1182 in relation to the matter; or

(ii) if the insurer has not received a notice under section 1182 - the notice under section 1184 in relation to the matter.

(a) at the time of the event that gave rise to the entitlement of a person to compensation, the person was qualified for, and was receiving, a compensation affected payment; and

(b) the person or the person's partner received or claimed a compensation affected payment in relation to a day or days in the periodic payments period;

the recoverable amount is the amount determined by the Secretary to be the total amount by which the person's, or the person's partner's, compensation affected payment in relation to a day or days in the periodic payments period would have been reduced if a determination had been made under Division 7 of Part 3 of the Administration Act because of point 1064-E3, 1066A-F2A, 1067G-H25, 1067L-D24, 1068-G8A, 1068A-E13 or 1068B-D21 of this Act.

1184F Debts resulting from notices under section 1178 or 1180

If the Secretary gives a person a notice under section 1178 or 1180 determining that the person is liable to pay to the Commonwealth the amount specified in the notice, the amount so specified is a debt due by the person to the Commonwealth.

1184J Secretary may give recovery notice either to compensation payer or to insurer but not to both

(1) The Secretary is not to give a notice to an insurer under section 1184 about a matter if there is a notice to a compensation payer under section 1184 in force in relation to the same matter.

(2) The Secretary is not to give a notice to a compensation payer under section 1184 about a matter if there is a notice to an insurer under section 1184 in force in relation to the same matter.

(1) For the purposes of this Part, the Secretary may treat the whole or part of a compensation payment as:

if the Secretary thinks it is appropriate to do so in the special circumstances of the case.

(a) a person or a person's partner receives or claims a compensation affected payment; and

(c) the set of circumstances that gave rise to the claim for compensation is not related to the set of circumstances that gave rise to the person's or the person's partner's receipt of, or claim for, the compensation affected payment;

the fact that those 2 sets of circumstances are unrelated does not alone constitute special circumstances for the purposes of subsection (1).

...Part 5.2 - Amounts recoverable under this Act

**...**1223 Debts arising from lack of qualification, overpayment etc.

(a) a social security payment is made; and

(b) a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;

the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.

(a) a debt recoverable by the Commonwealth under Part 5.2; or

(c) a debt due to the Commonwealth under a scheduled international social security agreement; or

(d) a debt under the Social Security (Fares Allowance) Rules 1998.

Note: Overpayments under section 1228 are not debts for the purposes of Part 5.2.

(1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.

(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.

1237 Power to waive Commonwealth's right to recover debt

(1) On behalf of the Commonwealth, the Secretary may waive the Commonwealth's right to recover the whole or a part of a debt from a debtor only in the circumstances described in section 1237A, 1237AA, 1237AAA, 1237AAB, 1237AAC or 1237AAD and, if the debt is an assurance of support debt, subject to section 1237AAE.

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.