The mother of a child with special needs has won a two-year battle against Services Australia after the agency demanded she pay back more than $27,000 in carer’s payments.
In a judgment published this week, the top tier of the Administrative Appeals Tribunal found mistakes by Centrelink had put Cassandra Clark under “additional strain” and “impacted on her mental health”.
In November 2018, Clark was issued a $27,000 welfare debt over alleged overpayments between September 2013 and October 2018.
After Clark challenged the decision, the AAT found in January 2019 that the overpayment was the result of Services Australia’s own mistakes, known as “sole administrative error”.
Services Australia had set her rate of carer payment without taking into account details of Clark’s partner’s income as a sole trader, which she had provided to the agency.
However, the Department of Social Services, which oversees Services Australia and Centrelink, appealed the decision last year in a fresh bid to recoup the money.
It did so despite accepting Clark had received the payments in good faith and that “there was no attempt on her part to act dishonestly or deceptively at any stage”.
In his judgment, the AAT senior member Chris Puplick sided with Clark, waiving the entire $27,000 debt.
Puplick disagreed with the earlier decision that the overpayment was solely caused by the agency. Though he noted the agency had made errors that likely had an “unfair” and “unjust” impact on Clark, he said she had also failed to respond to some correspondence she’d received about her circumstances.
In an apparent criticism of social security law, he said he was bound by the way parliament had “legislated to give a fig leaf of coverage to shield the department from the embarrassment of exposure to penalty for its administrative errors”.
Still, Puplick waived the debt, taking into account Clark’s circumstances. The judgment noted her son lived with “a significant degree of autism” and that Clark also had her own personal health issues.
Lawyers for Services Australia argued there was nothing unique about Clark’s circumstances, and that similar struggles “would be faced by other recipients of CP in respect of a child with similar conditions”, the judgment said.
But Puplick said: “What is of course ‘special’, although not necessarily ‘unique’, is that there has been a degree of administrative error by the department and the tribunal accepts that this has contributed to placing the respondent under additional strain and further impacting on her mental health because she has had to deal with the consequences of such an error.”
Clark first told her story to the ABC in September, where she said that the department’s decision to appeal to enforce the debt left her with a “sick feeling in my stomach”.
She was represented by the Welfare Rights Centre at the AAT November hearing. Natalie Ross, the centre’s principal solicitor, said her case highlighted an issue that led to many of its clients receiving welfare debts.
“Many people get more than one Centrelink payment, commonly an income support payment (like the carer payment received by Ms Clarke), and also a family tax benefit payment,” she told Guardian Australia.
“Household income affects both types of payments, but the process for reporting household income to Centrelink is different for different payments.
“People contact Centrelink and report a change of income and think they have done the right thing, but that information may only be applied to one of the payments and not both. Then they end up with a debt for the other payment.
“We think that it should be enough to contact Centrelink to report or update information.”
Ross added that the case showed how “vigilant” people needed to be in identifying Centrelink’s own mistakes, because they could still receive large debt “even if the substantial reason for the debt is a failing by Centrelink”.
Earlier this month, Guardian Australia reported a separate case in which Centrelink denied carer payments to a family violence survivor in a case the tribunal described as “appalling”.
