...[the applicant] was 80 years of age at the time he made his claim and is 88years of age now. Despite that, [the applicant] gave his evidence in a clear and cogent manner and he was able to write a lengthy letter to Centrelink clearly explaining his objections to the raising of the debt. As already noted, [applicant's] memory of events was not perfect but as eight years have passed since the events in question, that is not surprising. The Tribunal is satisfied that [applicant's] age has not been an impediment to his dealings with Centrelink and as such it should not be considered a special circumstance.

20. In records of a discussions between the applicant and a Centrelink officer on 4 July 2022, it is relevantly noted:[11]

4/07/2022 - ... Advised customer that I have read the letter dated 18/02/2021 in relation to overpayment and the reasons customer is appealing the decision. Asked customer if there was any other information he wanted me to consider. Customer advised that he simply went into the service centre to see if he would be eligible for pension but was made to submit claim forms which he wasn't ready to submit. He advised he needed more assistance to complete the form and was told that we would contact him to progress his claim. Customer advised that it was not till a few months later that he realised that we had paid him. Customer on the appeal document stated he didn't receive any correspondence from us in relation to pension grant, however in my conversation with the customer, he went through his communication and found the Age Pension grant letter dated 20/11/2014. When asked customer why he didn't contact us in relation to this letter and the fact that in his mind his application wasn't fully completed so to query the rates paid to him. Customer advised that the wait times for the agency was too long and he just was waiting for us to call him. I also asked did he converse with his financial advisers after claim was granted in 2014 and he said he did and when asked why didn't the nominee contact us to query the rates paid to him...

21. In the reasons for decisions for first review the Tribunal stated the following:

As already noted, [the applicant's] evidence to the Tribunal was inconsistent with his letter dated 18 February 2021 with regards to his awareness that the form he had submitted was incomplete. Given the written account was first in time, the Tribunal prefers it, although it is apparent, and understandable given the passage of time, that [the applicant's] recollection of events is not perfect. For example, in the letter he stated that he had never received a letter from Centrelink regarding his claim, but he has subsequently located a copy of the grant letter dated 20 November 2014.

22. Having considered the evidence the Tribunal is satisfied that the applicant did indeed receive the letter granting his age pension on 20 November 2014. I was sent to the address the applicant had noted on his application and the applicant has subsequently conformed he did have a copy.
23. Even if it was assumed that the applicant did not receive the letters, the applicant did subsequently receive age pension payments in his account and would have known the age pension had been granted. There is no evidence that that the applicant made any enquiries with Centrelink after receiving those payments or notified Centrelink that he had never intended to make a claim or that his form which had been lodged was incomplete and he had further information to provide regarding his assets. He continued to receive the age pension into his account.
24. The Tribunal finds that the applicant did indeed intend to make a claim for the age pension when he provided the claim form to Centrelink on 7 November 2014 and that he did not do so under duress.
25. The applicant may have told his son that he was not intending to make a claim and that may have been the applicant's position prior to lodging the claim, however the evidence demonstrates that the father did in fact proceed to make the claim.
26. The applicant's son has also repeatedly referred to part 8.1.1.60 of the Social Security Guide as a basis for his father being a vulnerable claimant. The applicant's son submits that application of that provision means that his father should have been assessed by Centrelink as a vulnerable claimant who had genuine difficulty in providing documentation.
27. The applicant's son has misconstrued the application of part 8.1.1.60 of the Social Security Guide. The part is relevant to the deemed claim provisions in sections 13 and 14 of the Social Security (Administration) Act which allows the day of contact about a claim for age pension to be taken as the day the claim is made. It is of no relevance to whether the applicant should have been treated as having made a claim or an enquiry or whether Centrelink should have made further enquiries regarding the applicant's assets.

1. Section 43 of the Social Security Act 1991 sets out the qualification requirements for the age pension including an assets and income tests. The rate of age pension payable to a person is calculated by using the Pension Rate Calculator A at the end of section 1064 of the Social Security Act. Under the rate calculator, the income test is known as "the ordinary income test" and is set out in Module E at the end of section 1064. The "assets test" is set out in Module G which is also at the end of section 1064.
2. In determining a person's rate of payment, both the income and assets tests are applied. It is not in dispute that the applicant was paid age pension from 7 November 2014 to 14 September 2020 without Centrelink having regard to the totality of the applicant's assets. No account was taken of the applicant's MLC managed investment at the time of claim in 2014 which meant the asset value should have been $571,348.00 and not $470,330.00.[12] The applicant was therefore paid more age pension than he was entitled to receive in that period.
3. Subsection 1223(1) of the Social Security Act provides that if a person receives more of a social security payment than they are entitled to receive, for whatever reason, the amount of the excess payment is a debt due to the Commonwealth. Subsection 23(1) of the Act defines the term social security payment to include age pension.
4. Centrelink have provided the calculations for the adjustment to the rent paid for the period.[13] That adjustment has not been disputed and the Tribunal is satisfied that the applicant has an age pension debt of $36,216.25 as calculated by Centrelink.
5. Section 1230C of the Social Security Act provides that where there is a debt due to the Commonwealth under the social security law, the debt is to be recovered from the debtor by the Commonwealth by one or more of the methods set out in that section.

Should the applicant be required to repay any or all of that debt?

1. Part 5.4 of the Social Security Act deals with the non-recovery of a debt by either write off, which defers action to recover the debt, or by waiver, which extinguishes the right to recover the debt.

1. Section 1237A of the Social Security Act requires the Secretary to waive a debt, or part of a debt, where the sole cause of the debt is administrative error by the Commonwealth and the amounts overpaid were received by the debtor in good faith.
2. The Tribunal has already rejected the applicant's contention that he did not intend to lodge a claim and only intended to make an enquiry. There can be no sole administrative error on that basis.
3. An issue arises as to whether Centrelink failed to properly consider the applicant's MLC investment at the time of assessing the claim and whether any such failure amounts to a sole administrative error on the part of Centrelink.
4. In the "Income and Assets" form which the applicant lodged with the claim for age pension he provided details such as the current market value of his personal assets, motor vehicle, campervan and monies held in bank accounts. The applicant also detailed a loan to his daughter and shares he holds with Insurance Australia Group Ltd (IAG). Under managed investments, the applicant simply noted 'MLC'. No further details were provided in that regard. The applicant provided several documents relating to his financial investments including the IAG shares, a Workers Compensation Dust Diseases Board (CDDB) payment and MLC Masterkey Allocated Pension.[14] The document in relation to the MLC Masterkey Allocated Pension records as the date of issue '16 October 2014' and notes an account balance as of 1 July 2014 of $197,404.50. The current balance was noted as being $194,206.79. No further details are provided on the form in that regard.
5. As stated above, the Centrelink documents contain a letter sent from Centrelink to the applicant dated 20 November 2014 advising him of receipt of the age pension and the Tribunal finds that the applicant did indeed receive the letter.
6. The letter set out the information used to calculate the applicant's regular payment:

Total Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $470,339.00 > > Annual Income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $9,784.01

7. In Greene and Secretary, Department of Social Services (Social services second review) [2024] AATA 811, the Tribunal on second review of a decision stated:

126. This Tribunal in Secretary, Department of Social Services and Gilmartin [2022] AATA 723 (Gilmartin) at paragraph [62] rejected the claims of sole administrative error in circumstances where Ms Gilmartin had not taken steps to correct information communicated to her by Centrelink. The Tribunal provided: > > 62. The notice provisions of the FA Administration Act make it clear that upon being issued with such a notice, a positive obligation is placed on the FTB payment recipient to not only advise Centrelink if their circumstances change, but to also check the details outlined in the notice and advise Centrelink if they are incorrect. The Respondent in failing to engage with the letters (which constitute notices for the purposes of the FA Administration Act) she received from Centrelink has failed to meet the obligation to ensure that the information being used to calculate her entitlements to FTB were correct. Regardless of the fact that the Respondent considered her circumstances had not changed and that Centrelink had access to all relevant information it may need, she has through her failure to positively engage with Centrelink contributed to the circumstances in which the FTB debts in question arose. > > 127. The Applicant contended that the Respondent breached a duty to protect her from being overpaid, however it is not up to the Respondent to make payment elections for the Applicant between annual and fortnightly payments. > > 128. In Saab and Secretary, Department of Education, Skills and Employment [2021] AATA 2766 (Saab), Senior Member Puplick provided at paragraphs [66] and [68] that it is not up to the Respondent to police the behaviour of benefit recipients: > > 66. While it might be argued that the department had a responsibility to check up on such matters as to whether or not the children were actually receiving the care in question, this is not a sustainable argument. The Department has no responsibility to "police" the behaviour of benefit recipients, rather the obligation lies on the recipients to ensure and maintain conformity with the benefit conditions or requirements, especially when benefits are paid directly to a recipient, but it also applies when the recipient knows that payments are being made to third parties (in this case the alleged service provider) on their behalf or via their instructions. Their personal responsibility includes responding to departmental correspondence and notices... > > 68. It is accepted that sole administrative error cannot arise where an applicant has failed in their personal statutory duty to report relevant matters to the Department.

8. Part 5, Division 1 of the Social Security (Administration) Act sets out a regime for Centrelink to require information to assess the claim. The Tribunal accepts that it was open to Centrelink to make further enquiries with the applicant regarding the MLC account. However, not having done so, does not amount to sole administrative error on the part of Centrelink. It is the applicant who failed to properly complete the form with the information and correct details of his assets. Moreover, when the applicant did receive notification of receipt of his pension and the value of his assets, he did not seek to clarify or update the correct amount of the assets and inform Centrelink.
9. It was not until 22 September 2020, that the applicant's then nominee contacted Centrelink to query whether the applicant's MLC managed investment was recorded and assessed by the Centrelink.[15] Later, Centrelink received a portfolio report from the nominee for the reporting period of 7 November 2014 to 7 November 2014 including documentation for his MLC Masterkey Investment Service Fundamentals.[16]
10. It was the applicant failed to provide all relevant details of his MLC investment on his claim form at the time of making the claim in November 2014. Question 21 of the Income and Assets form requested details about any managed investments. The applicant only partially completed the answer by naming "MLC".
11. For those reasons the Tribunal does not find that the debt should waived because of sole administrative error.

1. Section 1237AAD of the Social Security Act provides that the Tribunal may waive the right to recover all or part of a debt when:

• The debt was not the result of the debtor, or another person, knowingly making false statements or false representations, or knowingly failing or omitting to comply with provisions in the social security law; and

• It is more appropriate to waive, rather than write off, the recovery of the debt.

1. The Tribunal accepts that the evidence does not demonstrate that the debt was because the applicant, or another person, knowingly made false statements or false representations, or knowingly failed or omitted to comply with provisions in the social security law. While the applicant failed to properly detail his assets on the form, there is nothing to suggest he did so knowingly.
2. The term special circumstances is not defined in the legislation. The Full Court of the Federal Court in the matter of Dranichnikov v Centrelink [2003] FCAFC 133 at [65] determined that whether there are special circumstances in a particular case is dependent will be dependent on whether there are circumstances that would distinguish the case from the usual case.
3. In Angelakos v Secretary, Department of Employment and Workplace Relations (2007) FCA 25, the Federal Court concluded that in relation to special circumstances there must be something that distinguishes the case from the ordinary or usual cases. Justice Besanko said at [33]:

I also note that the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances. The danger is that the test will be overstated if the word 'exceptional' is emphasised. It was not the intention of Parliament to confine the exercise of the discretion to an exceptional. 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. It may not be easy to postulate the ordinary or usual case other than in quite general terms and, in doing so, close attention must be given to the particular statutory context.

4. Having considered the evidence, the Tribunal does not find that there are special circumstances in this case which would warrant waiver of the debt. There is nothing to suggest that the applicant could not pay back the debt.
5. The applicant's age and cognitive decline is not out of the ordinary for age pension recipients. The Tribunal accepts that it would have been prudent for Centrelink to make further enquiries about the applicant's MLC investment at the time of processing the claim. However, that failure does not outweigh the fact that the applicant failed to properly detail his assets or correct them after he was given notice of the grant of the age pension. The applicant has been substantially overpaid and the applicant has had benefit of the amounts which he was not entitled paid to him.
6. The Tribunal does not find special circumstances which would warrant the waiving of all or part of the debt in this case.

1. Section 1236 of the Social Security Act permits the write off of a debt in prescribed circumstances. On the evidence, none of those prescribed circumstances are applicable to this situation and there is no basis for writing off recovery of the balance of the debt.

1. The Tribunal finds that the applicant lodged a claim for the age pension with Centrelink on 7 November 2014 and failed to properly disclose his assets. A debt was properly raised by Centrelink. Having considered the circumstances, the Tribunal finds there is no basis to waive or write off the debt.

The Tribunal affirms the decision of Centrelink made on 4 February 2021 to raise an age pension debt of $36,216.25 for the period 7 November 2014 to 14 September 2020.

Represented by the applicant's son (power of attorney)

[3] S 23, Social Security Act 1991.