Special circumstances debt waivers 107-05120030

A debt may be waived under this provision where:

• either the customer, or another person did not:
• knowingly make a false statement
• make false representation, or
• knowingly failing or omitting to comply with the relevant Act
• 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.

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 generally 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.

Apply this provision where the debt arose because of an innocent mistake by the social security recipient. Do not consider in cases where the customer deliberately set out to defraud the Commonwealth. 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 customers' 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 generally 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.

Many circumstances that occur in isolation are not unusual. The net effect of all of the circumstances may be unusual. Waiver under special circumstances may therefore be an option.

It is not possible to set out a complete list of relevant factors to be taken into account. Consider each case on its own merits.

A specific waiver provision exists for debts attributable solely to an administrative error. Administrative errors generally 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.

When assessing cases involving family and domestic violence, it is important to provide customers with support services.

For more information, see the Family and Domestic Violence Support Model (FDVSM) in Family and domestic violence.

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.

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.

Financial hardship may be one of a number of circumstances which, when combined, give rise to special circumstances. If financial hardship is the only factor, do not waive the debt. Consider 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 very 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.