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1 |
Age qualification
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Davdar is a young refugee from Afghanistan
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Davdar was paid Youth Allowance (YA) because their visa stated they were 16 years of age
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Davdar did not know their exact age due to living a tribal existence before coming to Australia
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After getting actual birth records, Davdar was only 14. This means Davdar did not qualify for YA
Even though Davdar did not knowingly provide incorrect information or fail to comply with legislation, they did not qualify for YA. The full amount of YA paid to Davdar is a debt. Entitlement to another payment (known as notional entitlement), for example, Special Benefit (SpB) cannot be decided after the fact (retrospectively). This means no equivalent amount of another payment can be used to offset the debt. In this case, recovering the debt would be unfair and unjust.
In this example, special circumstances exist that justify waiving recovery.
Social Security Payments
No debt due to age qualification can be raised before the determination date when:
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there are no actual birth records, and
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an estimated Date of Birth gets updated with what is thought to be a more accurate estimate. For example, through bone density testing
This is because the date of effect of the new decision would be under s118(13) of the Social Security Administration Act. This legislation states, in part, the date of effect is the date of determination.
Family Assistance payments
This is a recoverable debt due to age qualification. This is because the Family Assistance date of effect is the date of event for all non-income related changes (s31 FA (Admin) Act). Consider a waiver under the special circumstance’s provisions for this example.
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2 |
Waiver of debt for a customer aged under 16 (minor)
Special Benefit (SpB) debt, 1 year old
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Noah was granted SpB on 24 March 2020 as their parent was not eligible for an income support payment in their own right
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Noah was 1 year old when the debt was raised, and is currently 2 years and 7 months old
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Noah’s mother was granted Parenting Payment Single (PPS) and Family Tax Benefit (FTB), due to a change in visa status. The claim was backdated to 18 August 2020
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Noah continued to receive SpB until 21 September 2020
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Debts were raised for the SpB payment and Coronavirus Supplement received for the period 18 August 2020 to 21 September 2020 totalling $1,902.74 and $1,100 respectively
This debt can be waived as the circumstances are considered as special due to the customer’s age during the debt period.
Youth Allowance (YA) debt, 15-year-old
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A former customer claimed YA (Jobseeker) as they were a refugee, newly arriving in Australia. Their YA payment was granted from 14 February 2020
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The customer received an updated ImmiCard (DFAT issued identity card), which they provided to Services Australia. Upon receipt of the new ImmiCard, it was identified the customer’s date of birth was incorrect
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The customer met the age requirements to be granted YA based on the incorrect date of birth (1 January 2002). As a result of the correction to the customer’s date of birth (1 December 2006), the customer no longer met the age requirements for YA and the payment was cancelled from the date of grant
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A debt was raised for an amount of $3,091.98 for the period 14 February 2020 to 2 July 2020
This debt can be waived as the circumstances are considered as special due to the customer’s age during the debt period.
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3 |
Waiver of compensation affected payments (CAP) made during a Victorian Transport Accident Act 1986 non-payment period
Consider waving a debt if:
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the debt is a result of a compensation preclusion period, and
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the customer is subject to a non-payment period under the Victorian Transport Accident Act 1986
The definition of an 'earner' under the Victorian Transport Accident Act 1986, excludes some Centrelink customers from receiving compensation for the first 18 months, following their injury. If compensation is not paid for the above reason, the date of the accident/injury is still the date that the loss of earnings or loss of earning capacity begins. This means that this is the start date of the preclusion period under section 1165 of the Social Security Act 1991.
There is no 'double dipping' in the above circumstance. It would be inequitable in these circumstances to recover the part of the debt representing CAPs paid during the Victorian Transport Accident Act 1986 non-payment period.
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4 |
When a special circumstance debt waiver should be considered
Alistair gets Disability Support Pension (DSP) and lives in a home that they own.
On 15 August 2017, a boarder moves into Alistair's spare bedroom and starts to pay rent.
On 18 August 2017, Alistair is driving home from the doctor after being diagnosed with an incurable disease. Alistair was not concentrating, had a car accident, and ended up in the intensive care unit where they were placed in a coma.
On 8 November 2017, Alistair wakes up from the coma and contacts the agency on 14 November 2017 to advise they got income from 15 August 2017. A debt shell is created.
This debt can be waived as Alistair did not knowingly make a false statement or omit information. The circumstances on their own are not particularly unusual, but the effect overall may be unusual and the debt waiver under special circumstance should be considered.
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5 |
When a special circumstance debt waiver should not be considered
Dorothy is getting Age Pension and had a partner move into their home.
Dorothy's washing machine hose breaks and water leaks over their unit. There was so much damage they had to move in with a family member.
Dorothy is aware that the agency needs to be notified but wants to fix up the issue at the unit first and believes the agency will understand.
After some time, Dorothy contacts the agency to report a change in relationship status. A debt shell was created because of the late notification. The staff member referring this debt recommended this case for special circumstance debt waiver consideration.
This debt cannot be waived under special circumstances as the customer knowingly withheld information that impacted the payment. Even though there was a recommendation to waiver, the delegate must decide if it meets the special circumstance debt waiver criteria.
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Special circumstances involving another person knowingly providing false information or misrepresenting facts in connection with a debt, but the debtor did not know about that act or omission
Maree received Disability Support Pension and \Family Tax Benefit. Maree was experiencing challenging circumstances involving domestic violence and was under psychiatric care.
During the illness, Maree believed their former partner, acting as their nominee, was accurately declaring their family income to Services Australia, however the former partner was underreporting that income. This resulted in debts totalling $7,000 being raised against Maree.
Maree contacted Services Australia and advised that their former partner was controlling and abusive, and that Maree was suffering physical and mental illness as a result. Social workers attested to this information, providing evidence in support of Maree’s claims.
A decision maker would be able to consider Maree’s broader circumstances when deciding whether to apply the special circumstances waiver. Given the false information was provided without Maree’s knowledge, it may still be open to apply the waiver despite the former partner (the ‘other person’) knowingly underreporting their family income.
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Special circumstances involving the debtor knowingly providing false information or misrepresenting facts in connection with a debt, due to financial coercion by another person
Penny, a casual worker, received jobseeker payment during a period of reduced working hours. During the holiday period, Penny’s work hours increased but they did not report the additional income to Services Australia. A debt of $1000 was consequentially raised against Penny.
Penny requested a review of the debt and informed Services Australia that they experienced coercive control by their former partner. Penny provided evidence that their former partner compelled them to underreport earnings to maximise the amount of jobseeker payment Penny received.
A decision maker may consider Penny’s broader circumstances when deciding whether to apply the waiver, including whether the presence of coercion by their former partner demonstrates it was justified that Penny knowingly underreported income.
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Special circumstances involving the debtor knowingly failing to adhere to the relevant law in connection with a debt, due to serious dependence on drugs and alcohol
Olivia received jobseeker payment following recovery from a serious car accident. During treatment for their injuries from the accident, Olivia developed a serious dependence on prescription drugs for chronic pain and also became dependent on alcohol to cope with post-traumatic stress disorder resulting from the accident.
Olivia contacted Services Australia and advised that their failure to comply was due to serious drug and alcohol dependency. A medical practitioner provided Services Australia with a letter attesting that Olivia’s capacity to comply was significantly impaired by their dependence on drugs and alcohol.
A decision maker may consider Olivia’s broader circumstances and decide their failure to comply was justified in the circumstances of the case. Olivia’s debt may be waived if the decision maker is satisfied that all elements of the special circumstance’s waiver provision are met in the circumstances.
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9 |
Consideration of a cultural scenario
A grandmother is caring for their 2 young grandchildren under a customary Aboriginal kinship arrangement. The children’s mother is temporarily unable to care for them due to health and housing instability. The grandmother receives Family Tax Benefit (FTB) for the children, as their primary carer.
After several months, the mother becomes stable again and the children return to live with her. However, the grandmother is not immediately aware that they need to contact Services Australia about the change of circumstances right away.
Culturally, decisions about care are made collectively within the family and changes may not be seen as final until the family group agree it is stable. Because of this, the grandmother continues to receive FTB for a few more weeks after the children have returned to their mother.
When Services Australia review the case, an FTB debt is raised for the overpaid period.
Under the special circumstances and justified in the circumstances provision, a waiver could be considered due to the following:
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The grandmother was acting in accordance with kinship obligations and community expectations
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The informal and fluid nature of care in Indigenous kinship systems means transitions may not be immediately recognised as ‘changes’ in the way Services Australia defines care
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There was no intentional wrongdoing. The grandmother believed they were still the primary caregiver as no change had been formalised in a cultural context. Their actions may be considered justified due to cultural norms and the reasonable belief that they were doing the right thing
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Waiving the debt may be more appropriate than writing it off as it recognises the role of kinship carers and avoids penalising culturally appropriate caregiving
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