Services Australia has lost its AAT2 action in a case that featured on 7.30 last year. AAT did overturn the AAT1 finding of pure administrative error in favour of special circumstances waiver based in part on the initial, unacceptable centrelink failings austlii.edu.au/cgi-bin/viewdo…
Nice sum up here of how any inaction or failure to react to received small print can insulate the debt from waiver as an “error” notwithstanding incorrect advice or reassurances were made by centrelink. Picture of the text of Paragraphs 39 and 40 of the linked de
Tribunal also favoured the view that each individual piece of correspondence from centrelink needs to be responded to - irrespective of it centrelink already has the information rather than framing the issue around obvious information held by centrelink on its systems
The tribunal ultimately found for the applicant by stressing that errors must be taken into account when considering special circumstances - here living with centrelink’s bald error produced great suffering for the applicants. Love the Handley quote at paragraph 86 (below)

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More from @DarrenODonovan

17 Dec 20
Nothing says Xmas like answers to question on notice, ho ho ho! robodebt ones:
- Largest refund was $56,828.37
- Only two (2!) level 1 AAT's setting aside averaged debts (2015-19) were appealed by government, one was withdrawn/one still hasn't been heard aph.gov.au/api/qon/downlo…
Interestingly, Services Australia gave us a sample of AAT decisions "upholding" averaging, 11 of them: aph.gov.au/api/qon/downlo… Would love to steakybeak into these. most likely inferential findings of stable earning, or lacking in statutory interpretation like Thurling at AAT2
My fav dorky QoN is on how legal instructions on AATs are obtained from DSS. An underestimated issues with the class action was attribution. DSS has managed to skate along through inquiry after inquiry. Lines of decision-making made clearer here:
Read 7 tweets
30 Nov 20
Interesting that a Commonwealth Minister can claim the Federal Government was unlawfully issuing debts for 26 years and there's no media interest in whether the government proposes to find/refund any such debts*

*Put me down as sceptical about the number, nature of such debts
Despite the efforts to kick up dust, the government has a responsibility to explain what distinguishes an unlawful average from a lawful inference of stable earnings. It has intentionally not done so so far. This links to its dodgy use of bank statements
The Minister's pre 2015 sample was a slapstick effort conducted literally over a weekend to have something to say in parliament. It used the unknown category 'debt fully verified'. No context for this exercise has ever been shared via FOI or to the Senate theguardian.com/australia-news…
Read 7 tweets
29 Oct 20
Amusing confirmation that the robodebt legals and policy approval came from Department of Social Services in April 2015. They’ve been obstinately refusing to release the Executive Minute pitching the system to then Minister Morrison to the senate inquiry theguardian.com/australia-news…
They are blocking it on the spurious basis it would “disclose the existence of a cabinet deliberation”. A point they lost before the OAIC, and have now made a desperation heave to the AAT on, but the papertrail disclosing the decision is out there austlii.edu.au/cgi-bin/viewdo…
The stakes of Justin’s FOI appeal are high - big implications for budgetary transparency. they seem to believe that because the 15-16 budget papers and press release said “government” not “cabinet”, they get to claim cabinet exemptions over all preparatory materials. Farcical
Read 6 tweets
29 Oct 20
The ANAO's report on NDIS planning is out. It finds that the agency does 'not yet' have appropriate controls to ensure plans are reasonable and necessary. While a control framework is designed, implementation of the controls is required anao.gov.au/work/performan…
ANAO finds internal policies are consistent with legislation (a impractically global observation). Implementation of participant planning policies has however not complied with" - internal audits have shown low levels of compliance with internal policy.
First recommendation calls for the ICT improvements so system aligns with policy. The 2nd recommendation calls for "using outcomes data from internal reviews and AAT reviews, including early resolution outcomes, to inform continuous improvement".
Read 27 tweets
13 Aug 20
Having an old gander at Gordon’s amended reply for the #robodebt class action - eyeing two named “robodebt is unlawful” AATs like a record collector looking at rare Japanese edition issues - oooh I don’t have those...
Some early illustrations of how formal discovery outstrips FOI as well: “an incomplete response” to their own minister? 86% hit rate on the appeals, some the media transcripts of the time will be ... different in emphasis
I’m biased as I’ve spouted it for 2 long years now but the amended claim is stronger for having section 8(f) SSA in it. Needed it there from the start. It helps counter the “duty of care would be inconsistent with the statute”. Shows first instance diligence was expected
Read 4 tweets
13 Jul 20
First official line on the #robodebt refund cohort provided in answer to question from @senator_patrick the figures contrast a little with previous ones as they relate to debt notices (which can produce multiple debts). refund rate (averaged cohort) of issues debts is about 68%
There about 88,000 debt notices on which no money has been paid - so no refund eligibility there obviously. Around 2/3s of those will be zeroed (with hit to budget). You can see the prevalence of averaging in the SA cohort - 67% of debts with payment being refunded.
We know the average refund (not total debt value) is $1900 so at least $60 million of unlawful demands being returned to South Australians this month. Just look at that age breakdown as well- young Australians in need of that money right now
Read 5 tweets

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