Editors --- "Waiver in Special Circumstances - Trends in the Case Law - An update" [2009] SocSecRpr 1; (2009) 11(1) Social Security Reporter, Article 1

• Waiver in Special Circumstances – Trends in the Case Law – An update

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Waiver in Special Circumstances – Trends in the Case Law – An update

Both the Social Security Act 1991(section 1237AAD) and A New Tax System (Family Assistance) (Administration)Act 1999 (section 101) contain a discretion which enables a decision maker to waive all or part of a debt on the grounds of “special circumstances”.

In Oberhardt v Secretary to the DEEWR decided on 17 December 2008 in the Federal Court, (reported in this issue) Spender J. reinforced the broad nature of the discretion contained in these provisions. A recent article 10(3) SSR 1-7) examined trends in the case law relating to the exercise of the discretion to waive a debt on the basis of “special circumstances”. It highlighted a trend at the Administrative Appeals Tribunal level of decision-making to dismiss any notional entitlement to an alternative payment type as a valid consideration or basis for the application of special circumstances waiver. The Administrative Appeals Tribunal reasoned that Parliament had seen fit to provide for set off of notional entitlement in very specific circumstances only, in alternative provisions of the legislation. The Court in Oberhardt specifically considered whether notional entitlement could be a special circumstance, and said that it could not be excluded from the range of relevant considerations.

Oberhardt highlights the need for a decision-maker to remain open to all factors that might be relevant and which might make the recovery of a debt unfair or unjust in the particular circumstances of an individual case. Failure to do so is to improperly fetter the broad discretion set out in section 1237AAD of the Act.

[A.T.]