Special circumstances debt waivers 107-05120030

Staff must consider waiver provisions as part of the debt raising process and on review or application by the customer.

A debt may be waived under this provision where:

• the debt did not result wholly or partly from the customer or another person knowingly providing false information, misrepresenting facts or failing to adhere to the law, or
• the debt resulted wholly or partly from such an act or omission by the customer, but that act, or omission was justified in the circumstances, or
• the debt resulted wholly or partly from such an act or omission by another person but either the customer:
• did not know about that act or omission, or
• was justified in the circumstances for not correcting that act or omission, and
• special circumstances (other than financial hardship alone) make it desirable to waive, and
• it is more appropriate to waive the debt than to write it off

The term 'knowingly' should imply actual knowledge. It is not merely knowledge that they are supposed to know or could have found out. If the debtor behaved in a recklessly indifferent manner, they may also be considered to have acted knowingly in respect of their conduct or representations.

When determining whether a person was ‘justified (acceptable or having good cause or reason) in the circumstances’, staff will be required to consider the person’s circumstances in their entirety.

Where there is no reason justifying a customer knowingly providing false information or failing to comply with the law or justifying why a customer did not correct the act or omission of another person they knew of, staff will not be able to apply the special circumstances waiver.

The purpose of this provision (section 1237AAD) is to provide a flexible response to any situation, which could result in hardship or unfairness in rigidly trying to recover a debt.

Special circumstances need to be:

• unusual
• uncommon, or
• out of the ordinary

The intention is not to interpret the circumstances as being unique. They may have a quality of unusualness that makes them special.

Financial hardship alone cannot be used as sufficient reason to apply 'special circumstances' when considering waiving a debt.

Consider a temporary write-off of a customer’s debt if they have no capacity to repay. Recovery action can recommence if the customer's financial circumstances change.

Special circumstance legislation is a discretionary provision. What one person (or tribunal) may see as special, another may not. Special circumstances are difficult to define. They are due to situations that are unusual, uncommon, or out of the ordinary. Consider the context in which they happen and if they differ from the usual run of cases. While the circumstances might be unique, they must have a particular quality of unusualness that would describe them as special.

The discretionary provision allows for a customer’s broader circumstances to be considered by staff when deciding whether to apply special circumstances waivers, including circumstances that justify why a person provided false information or failed to comply with legislation. Circumstances may include (but are not limited to) consideration of issues such as:

• family and domestic violence
• financial abuse and coercion
• mental health
• decision-making capacity
• the impact of natural disasters
• homelessness, or
• serious dependence on drugs and alcohol

It is not possible to set out a complete list of relevant factors to be considered. The special circumstances waiver requires consideration of a person’s circumstances in their entirety. Consider each case on its own merits

See Family and domestic violence and Identifying customer vulnerability and risk issues.

A specific waiver provision exists for debts attributable solely to an administrative error. Administrative errors will not lead to special circumstance waivers.

However, taken in context, an administrative error may sometimes combine with other circumstances to create a situation that is, overall, special.

Other factors to consider when determining if special circumstances exist would include, but are not limited to, the physical and emotional state of the person together with their decision-making capacity and financial circumstances, such as family and domestic violence.

A person may be coerced into claiming a payment as a single person when they are a member of a couple or another person may provide false information about them as a means of financially controlling them.

When assessing cases involving family and domestic violence, it is important to ask customers if they have adequate support and offer appropriate external/internal referral, if needed.

See Family and domestic violence for information on:

• what is FDV (including financial abuse)
• external and internal referral options, if it is identified that the customer needs support

A person aged under 16 may qualify for a Centrelink payment with or without responsibility of an adult. For the purposes of investigating a Centrelink debt, a person is considered a minor if they are under 16 years of age at any time during the debt period.

Special circumstances waiver provisions should be assessed for customers aged under 16 at any time during the debt period. Consider each customer’s individual circumstances. Customers under 16 may be experiencing FDV or other vulnerabilities, see Family and domestic violence and Identifying customer vulnerability and risk issues.

If a customer under 16 says they are not living with a parent or guardian, they must always be referred to a social worker. See Assisting a customer aged under 16

Staff with concerns about a child’s safety must go to Risk identification and management of threats to the safety or welfare of a child.

Where a customer has a Family Tax Benefit (FTB) debt based on receiving a higher child support assessment (maintenance income) retrospectively, and they are unable to collect the increased child support for fear of FDV, a partial exemption should be considered before a debt waiver. See Exemptions from seeking child support for FTB customers.

Financial hardship may be one of a few circumstances which, when combined, give rise to special circumstances. If financial hardship is the only factor, do not waive the debt. Consider temporarily writing off the debt rather than waiving the debt.

There are situations or events which, due to their nature, have been determined to meet special circumstance waiver provisions. This occurs in extremely limited cases. The Resources page contains more information.

Notional entitlement refers to a benefit that a person did not claim but would have been entitled to if they had applied for it. Although notional entitlement can be assessed as a factor when considering a waiver for special circumstances, the decision to apply special circumstances cannot be based solely on notional entitlement. See the Resources page.