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Under section 101 of the A New Tax System (Family Assistance) (Administration) Act 1999 the FAO can waive (1.1.W.10) the recovery of a debt (1.1.D.60) if there are special circumstances that make it inequitable to recover the debt.
This topic covers the following:
The FAO may waive the right to recover all, or part, of a debt if it is established that:
Act reference: FA(Admin)Act section 101 Waiver in special circumstances
Special circumstances are a discretionary provision of the A New Tax System (Family Assistance) (Administration) Act 1999 that mirrors section 1237AAD of the Social Security Act 1991. Case law decisions made about the Social Security Act provide guidance in making decisions about special circumstances for the purposes of the Family Assistance (Administration) Act.
Financial hardship can be one of the factors taken into account when making a decision under this provision, however, it cannot be the only one. If financial hardship is the only reason, consideration should be given to writing-off the debt instead.
In Beadle and D-GSS (1984) 1AAR 362 the AAT held that, in order for 'special circumstances' to exist, it must be possible to say that the circumstances in the case in question are 'markedly different from the usual run of cases'. The circumstances must have 'a particular quality of unusualness that permits them to be described as special'.
In SDSS v Hulls (1991) 13 AAR 414, the Federal Court held that it is not possible to set out a complete list of the relevant factors to be taken into account in determining whether special circumstances exist. Each case must be considered on its own merits.
Act reference: FA(Admin)Act section 101 Waiver in special circumstances
To enable parents participating in the AMEP to attend classes, the Commonwealth provides them with free childcare. Where AMEP participants claim CCB as reduced fees for approved care provided in the 2008-09 and 2009-10 financial years incur overpayments, they are considered to be in special circumstances and can have their overpayment waived.
Under section 101 of the A New (Family Assistance) (Administration) Act 1999, the debtor or another person must not 'knowingly' have made a false statement, misrepresentation or failed to comply with a provision of FA law.
This means that if there is an element of intent in the debtor's or another person's conduct for the purposes of this provision, the debt will not be able to be waived on the basis of special circumstances. It may also be sufficient if the debtor was recklessly indifferent about their conduct or representations.
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Last reviewed: 2 March 2009
