Welcome Karen

This month, we would like to warmly introduce our new SSRV community lawyer, Karen Trentini. Karen’s work at SSRV will include providing legal advice and ongoing representation to clients, providing legal information to financial counsellors and community workers, delivering community legal education, and contributing to SSRV’s systemic advocacy work.

Family Violence and our Social Security System

On Thursday, 24 October, SSRV will deliver a professional development session that addresses the intersection and interplay between family violence and Centrelink. Our work delivering services to the community has taught us that victim-survivors of family violence can receive unfavourable Centrelink decisions, such as a decision to raise a debt, as a direct result of the family violence they have experienced. Additionally, in some instances, the perpetrator of family violence can use Centrelink as a tool to further perpetrate financial abuse.

Family violence can be a relevant consideration for a decision-maker in determining whether ‘Special Circumstances’ exist as grounds for debt waiver under s 1237AAD of the Social Security Act 1991 and s 101 of the A New Tax System (Family Assistance) (Administration) Act 1999.

In this month’s edition of the Devil’s Advocate, SSRV would like to briefly touch on the ‘Special Circumstances’ debt waiver provisions, with further training and information to be provided during our upcoming professional development session.

Special Circumstances Debt Waiver

When a debt is waived, this means that Centrelink is permanently prevented from recovering the whole, or a portion of, the debt. Section 1237AAD of the Social Security Act 1991 provides that all or part of a debt may be waived if:

• The debt did not result wholly or partly from a debtor or another person knowingly making a false statement or representation or failing to comply with social security legislation; and
• There are special circumstances that make it desirable to waive; and
• It is more appropriate to waive than to write off (temporarily pause) the debt or part of the debt.

Financial hardship alone is insufficient to constitute ‘Special Circumstances’. Case law has interpreted special circumstances to mean those that are:

• Unusual, uncommon, or exceptional; and
• Would make it unjust for the person to repay the debt.

How can I support a client to make an application for ‘Special Circumstances’ debt waiver?

If you are supporting a client to make an application for debt waiver on grounds of ‘Special Circumstances’, consider the client’s circumstances as a whole and how family violence might have contributed to many different aspects of vulnerability, such as lack of housing security/homelessness, physical injury, isolation, trauma/mental health conditions, sole parenting, and financial hardship.

In the application, detail how these circumstances together as a whole distinguish your client’s case from the usual or ordinary, and therefore amount to special circumstances.

What are the challenges?

Demonstrating special circumstances is a high bar. Two common reasons why an application for waiver on grounds of family violence may not be successful:

• The decision-maker is unable to make a finding that family violence has occurred, as there may be little evidence and family violence is often underreported; and
• The decision-maker finds that experiencing family violence is not, in itself, a special circumstance.

A further challenge is that debtors must demonstrate that the ‘debt did not result wholly or partly from a debtor or another person knowingly making a false statement or representation’. More information about this will be made available in our upcoming training.

Risk of Recalculation or Fraud Investigation

If your client seeks a review of a Centrelink debt, there is a risk that Centrelink may recalculate the debt to a higher amount, or that they may refer your client for an internal fraud investigation. For these reasons, we always recommend that people seek legal advice before seeking an internal review of a Centrelink debt.

You can refer a client to our service for legal advice by calling our Worker Helpline on 0419 793 652.