Anderson and Secretary, Department of Education, Science and Training
[2006] AATA 589
•4 July 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 589
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/374
GENERAL ADMINISTRATIVE DIVISION ) Re DAVID ANDERSON Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, SCIENCE & TRAINING
Respondent
DECISION
Tribunal Mr S. Webb, Member Date4 July 2006
PlaceCanberra
Decision The decision under review is set aside and in substitution thereof the Tribunal decides that it is appropriate, in the special circumstances, to waive the balance of Mr Anderson’s debt that is presently outstanding. ..............................................
Mr S. Webb, Member
CATCHWORDS
Social security – Austudy - distance education course - advice given by job network provider in error - failure to read information provided about Austudy - grant of Austudy on incomplete application form - completion of form by Centrelink officer without reference to applicant - not a full-time student - overpayment debt - debt not solely attributable to Commonwealth administrative error – serial Commonwealth errors - recovery of the debt will result in unfairness – applicant partly responsible – balance of debt waived in special circumstances
Social Security Act 1991 ss 569A, 569C, 569D, 1223, 1236, 1237A,
Social Security (Administration) Act 1999 ss 36, 37
Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190
Re Secretary, Department of Social Security and McAvoy (1996) 23 AAR 543
Re Secretary, Department of Family and Community Services and Jonauskas (2001) 65 ALD 355
Beadle v Director-General of Social Security (1985) 7 ALD 670
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Secretary, Department of Social Security v Hales (1998) 82 FCR 154)
REASONS FOR DECISION
4 July 2006 Mr S. Webb, Member 1. In 2003 David Anderson had been unemployed for a long period. He received Newstart Allowance. Oasis Pre Employment Network Incorporated (trading as Campbell Page), a job network provider under contract to the Commonwealth, provided him with intensive support, the object of which was to place him into employment or qualifying education. As a result Mr Anderson enrolled as a distance education student in the Charles Sturt University (“the University”) Bachelor of Applied Science (Equine Studies) course (“the Equine Studies course”) (see Exhibit A3) in 2004. He claimed and was paid Austudy instead of Newstart Allowance. Subsequently, Centrelink informed Mr Anderson that he was not qualified for Austudy payments and raised a debt against him.
2. Mr Anderson asserts that he was not aware of the qualifying requirements for Austudy and relied on the advice he was given by Campbell Page. Centrelink made a number of administrative errors and he should not, therefore, be required to repay the debt.
3. The issues before the Tribunal are:
(a)Is Mr Anderson liable for an Austudy overpayment debt? And, if so
(b)Are there grounds to write off or waive the debt?
Is Mr Anderson liable for an Austudy overpayment debt?
4. Mr Anderson was represented by his mother Judith Anderson at the hearing. At the outset Mr Anderson accepted that he was not qualified for Austudy as he did not satisfy the full-time study requirements for that payment. He also informed me that he did not dispute the amount of Austudy that he was paid and had no issue with the amount of the debt raised against him. Nevertheless, Mrs Anderson attacked her son’s liability for an Auststudy overpayment debt on the basis that he was not provided with correct information about the effects of enrolling as a distance education student in the Equine Studies course offered by the University.
5. The qualifying requirements for Austudy are set out at Part 2.11A of the Social Security Act 1991 (“the Act”). Essentially, to qualify for Austudy a person must be either a ‘full-time student’ or a ‘concessional study-load student’ enrolled in an appropriate course (s 569A). A ‘full-time student’ is a student who undertakes at least three quarters of the normal amount of full-time study in the course (s569C). A ‘concessional study-load student’ is a student who, in certain circumstances, undertakes either 25 percent or 66 percent of the full-time study load in the course (s569D). A 25 percent concessional load student is a student with a certified physical, psychiatric or intellectual disability. A 66 percent concessional load student is a student who is unable to undertake the course as a full-time student because of the usual requirements of the institution for the course or because the academic registrar or an equivalent officer has directed (or recommended for a short period) that the student should not undertake the course on a full-time basis.
6. Mr Anderson enrolled as a distance education student in the Equine Studies course. He was offered admission on that basis and commenced the course on 23 February 2004 (T4). The University recorded Mr Anderson as a part-time student (see T16). His annual course load in 2004 was 50 percent of the full-time load (see T9 and T11). He undertook two units in each semester in 2004 as well as related off-campus work experience. The full-time study load for the course was four units in each semester (see Exhibit A3, p6). In order to be considered as a full-time student for the purposes of Austudy the study load must be at least 75 percent of the full-time load. It follows that Mr Anderson was not a full-time student.
7. There is no evidence that Mr Anderson suffers from a physical, psychiatric or intellectual disability. He was not a 25 percent concessional load student.
8. There is no evidence that the academic registrar or any equivalent officer at the University directed or recommended that Mr Anderson should undertake the Equine Studies course at less than the full load. The University offered the Equine Studies course on a full-time and distance education (part-time) basis. Mr Anderson gave reasons why he did not undertake the course on a full-time basis. I am reasonably satisfied that it was open to Mr Anderson to increase his study load after commencing the distance education course (see T17 and T18). I am reasonably satisfied that the usual requirements of the University in relation to the Equine Studies course did not prevent Mr Anderson from undertaking at least a 75 percent study load in that course. It follows that Mr Anderson was not a 66 percent concessional load student.
9. That being so, Mr Anderson was not qualified for Austudy. However, from 16 March 2004 to 7 April 2005 he was paid $10,789.87 in Austudy payments. Mr Anderson was not entitled to those payments. Under s 1223 of the Act the amount paid to Mr Anderson without entitlement is a debt to the Commonwealth for which he is liable.
10. I note in passing that the Social Security Appeals Tribunal set aside the primary decision to raise and recover the debt in the amount of $10,789.87 and decided that it was appropriate to waive the portion of the debt that accrued from 20 August 2004 to 15 December 2004 on the basis of special circumstances.
Are there grounds to write-off or waive the debt?
write-off
11. Neither party asserted any grounds to write-off Mr Anderson’s debt.
12. A debt may be written-off for a period if there are sufficient grounds pursuant to s1236 of the Act. Relevantly, those grounds include consideration of the debtor’s capacity to repay the debt.
13. Mr Anderson gave evidence about his financial circumstances and the present arrangements for recovery of the debt from his Newstart Allowance. I am satisfied that he has some capacity to repay the debt, albeit at a low rate. Other grounds to write-off the debt are not made out on the materials before me.
14. It follows that the debt cannot be written-off.
waiver - administrative error
15. Mr Anderson strongly asserted that the debt arose solely because of Centrelink errors and because he relied on advice he was given by Campbell Page. The alleged Centrelink errors are set out in submissions tendered by Mrs Anderson on her son’s behalf.
16. If a debt is solely attributable to Commonwealth administrative error and it was received in good faith, then the right to recover the debt must be waived (s1237A). However, if the debt is attributable, in whole or in part, to causes other than Commonwealth administrative error the mandatory requirement to waive recovery of the debt pursuant to s1237A is not enlivened (Selway J, in the majority, in Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190 at paragraph 35).
17. I am reasonably satisfied that Mr Anderson’s debt was not solely attributable to errors of the Commonwealth, but was partly attributable to his own errors and omissions.
18. Mr Anderson lodged a claim for Austudy on 16 March 2004 (T5). In that document he set out the ‘Official start date’ for his course but did not include any ‘Official end date’ (T5, folio 27). He specified that he would be studying full-time and that he would be undertaking 40 hours formal course work per week (T5, folio 28). It was on that basis that his Austudy claim was assessed. However, Mr Anderson did not undertake the course on a full-time basis, nor did he undertake 40 hours formal course work per week. The information Mr Anderson provided in his claim form for Austudy was incorrect. Nevertheless, that information was taken into account by Centrelink officers assessing his claim and it was on that information that Mr Anderson was found to be qualified for Austudy.
19. Mr Anderson asserted that he thought that he was correct when he informed Centrelink that he was enrolled in a full-time course. He told the Tribunal that he completed the Austudy application form on the basis of his knowledge at the time. He stated that he did not understand the Austudy qualification requirements when he completed the form. His evidence was that he did not understand the meaning of university terminology at the time, having left school at the end of year 10 and only completed tertiary entrance qualification as an adult.
20. In the face of such ignorance and uncertainty it would be reasonable to expect Mr Anderson to read the information he was provided about Austudy, or to consult Centrelink, or to contact the University for clarification about his enrolment. In fact he did none of these things and completed the Austudy claim form in a manner he thought appropriate with information he thought was correct.
21. Mr Anderson asserted that his errors were as a result of information and advice he was given by Mr Bradley Neal, a case officer employed by Campbell Page. Mr Anderson stated that Mr Neal assisted him to identify suitable education options and advised him to take up the Equine Studies distance education course on the basis that he would be eligible for Austudy. Mr Neal was not called to give evidence. However, in a letter dated 24 August 2005 Mr Neal stated that:
“…David and I did discuss the value of further education and both felt it was conducive to his situation and location at that time. Benefits were also discussed in relation to fulltime study.
I felt with David notifying Centrelink of his course details they would have referred him to the appropriate benefit.”
22. I am prepared to accept that Mr Neal assisted Mr Anderson to identify suitable education options, including the Equine Studies course, and discussed the prospect of Mr Anderson transferring from Newstart Allowance to Austudy payments.
23. The Respondent submitted that in the event that Mr Neal provided advice or information in error, that error is not an error of the Commonwealth as he was not an employee, officer or agent of the Commonwealth.
24. As will appear, I do not agree. Campbell Page provided job network services under contract to the Department of Employment and Workplace Relations (“DEWR”). The contracts in question were filed by the Respondent (Exhibit R4). It is not necessary to examine all of the contract terms in detail. Plainly enough, Campbell Page was contracted to provide certain services to job seekers. In Mr Anderson’s case the services included Intensive Support Services pursuant to section 4, Part B of the contract. Those services were to be delivered under a code of conduct set out in Schedule 2 to the contract. It was conceded that, even though the contract stipulates that Campbell Page was not an employee, partner or agent of DEWR, Campbell Page was an agent of the Commonwealth when it negotiated Job Search Plans with eligible job seekers (see Part B – Specific Conditions, clauses 4.6(b) and 6.3). A Job Search Plan is a schedule to the job seeker’s Preparing for Work Agreement, being an activity agreement for the purposes of the Act. Thus it follows that Mr Neal was an agent of the Commonwealth when he negotiated a Job Search Plan and Preparing for Work Agreement with Mr Anderson. If erroneous information is provided to a job seeker by an agent of the Commonwealth, that error is an error of the Commonwealth.
25. The contract provides no authority to Campbell Page to assess a job seeker’s qualification for a particular allowance or payment; that is a proper role for Centrelink. Nevertheless, if Mr Neal gave Mr Anderson erroneous advice about Austudy in the context of negotiating a Job Search Plan or Preparing for Work Agreement, then his error is an error of the Commonwealth.
26. The contract clearly provides for the negotiation of a Job Search Plan that specifies vocational training or education components or outcomes. Under the contract DEWR is liable to pay fees to Campbell Page in relation to Intensive Support Outcomes as specified in a Job Search Plan. However, DEWR is not liable to pay fees in relation to training courses that are not eligible for Youth Allowance, Abstudy or Austudy (Part B, clause 10.10). Thus parties negotiating a Job Search Plan including vocational training or education components or outcomes may reasonably be expected to consider any such training or education in relation to (in this case) Austudy.
27. I am satisfied that Mr Neal gave Mr Anderson information and advice concerning educational options in the context of negotiations concerning a Job Search Plan. Mr Neal’s evidence reveals that he was Mr Anderson’s case worker in 2003 and he attempted to negotiate a new Preparing for Work Agreement with Mr Anderson in the period in the latter part of that year, after June 2003. I accept Mr Anderson’s evidence that Mr Neal obtained and provided him with information about a psychology course and the Equine Studies course in the course of those discussions, only the latter of which was available by distance education. I accept Mr Anderson’s evidence that he discussed the desirability of undertaking distance education with Mr Neal and that it was on that basis the Equine Studies course was settled upon.
28. Precisely what Mr Neal meant when he referred to discussing “Benefits … in relation to fulltime study” with Mr Anderson is not clear. However, it can be inferred that the reference is to Austudy payment in relation to the two courses then under consideration. Mr Neal stated that “[Mr Anderson] became inactive on my caseload entering into fulltime study and thus exiting from my caseload” (T33). Mr Anderson first communicated with the University in or about September 2003 and his application was accepted in November 2003. However, he did not commence the course until February 2004 and was transferred from Newstart Allowance to Austudy payment in March 2004. Thus it appears that Mr Anderson remained on Mr Neal’s caseload until February 2004. On that basis I am satisfied that Mr Neal’s reference to “fulltime study” is a reference to Mr Anderson’s enrolment in the Equine Studies distance education course that commenced on 23 February 2004. It appears likely, therefore, that Mr Neal was proceeding under the misapprehension that Mr Anderson’s enrolment in the Equine Studies distance education course was full-time and that he gave Mr Anderson information and advice on that basis. Unfortunately Mr Neal’s understanding that Mr Anderson’s enrolment in the course was full-time was incorrect. Any information or advice Mr Neal gave on that basis was likely to be infected by that error. As Mr Neal provided the erroneous information and advice in the context of negotiations concerning Mr Anderson’s Job Search Plan and a new Preparing for Work Agreement, for which purpose he was an agent of the Commonwealth, his error was an error of the Commonwealth for the purposes of s1237A.
29. Mr Anderson was entitled to rely and act upon the information and advice he was given by Mr Neal as an agent of the Commonwealth when negotiating his Job Search Plan and Preparing for Work Agreement. That is what he did. I accept that Mr Anderson was ignorant about whether his distance education enrolment was full-time or part-time. In his Austudy claim form he stated that it was full-time. That is consistent with the information and advice he was given by Mr Neal.
30. However, there was an onus on Mr Anderson to ensure that the information he gave Centrelink was correct and complete. He did not satisfy that requirement. Mr Anderson also stated in his Austudy claim form that he would be undertaking 40 hours of course work per week. By his own account that figure was an ill-informed guess. Mr Anderson’s guess may have reflected his understanding of the meaning of ‘full-time’, but it was not a reasonable estimate of the weekly course work required of a distance education student in the Equine Studies course. It is not attributable to Mr Neal.
31. It was Mr Anderson’s responsibility to ensure that the information he provided Centrelink concerning his enrolment in the Equine Studies distance education course at the University was correct. He was entitled to rely on the information provided by Mr Neal concerning full-time study, even though that information was incorrect. However, Mr Anderson was not entitled to provide Centrelink with specific information about his course work hours that was incorrect and without any reasonable basis. The onus was clearly on Mr Anderson to rectify his ignorance and to confirm his course work hours with the University, and provide that information to Centrelink. It was his responsibility to take reasonable steps to ensure that the information he provided was accurate. He failed to do so. Had he done so and included correct information on his Austudy claim form, the anomaly between a 50 percent course load and the purported full-time nature of study would have been apparent to Centrelink officers assessing his claim. To that extent at least his error contributed to his debt.
32. Mr Anderson failed to provide Centrelink with a copy of his enrolment in the Equine Studies course. He failed to provide an end date for the course. He failed to read the information that was attached to the Austudy claim form (Exhibit R2). I am satisfied that Mr Anderson was cavalier in his dealings with Centrelink in relation to his Austudy claim. In his present circumstances, Mr Anderson now asserts that he should not be required to repay the debt for which he is liable because Centrelink failed to properly address his errors and omissions when assessing his claim.
33. The social security system is one in which claimants and the Commonwealth share responsibility. On the one hand, a claimant is entitled to rely and act upon information provided by the Commonwealth and its representatives or agents, and is entitled to have confidence in the assessment and administrative processes of the Commonwealth (see Re Secretary, Department of Social Security and McAvoy (1996) 23 AAR 543 at 552-553). On the other hand, it is the responsibility of a claimant to take all reasonable steps to ensure that all the information they provide for the purpose of a claim or grant of income support is accurate and complete.
34. Mr Anderson did not fulfil the responsibilities attaching to his claim for Austudy. He failed to inform himself about his obligations. He failed to check the accuracy of information he provided. He failed to provide information and evidence that was necessary for the proper assessment of his claim. It cannot be said, in truth, that those failings on his part did not contribute materially to the debt for which he is now liable. I am satisfied and find that they did.
35. It follows that Mr Anderson’s debt was not solely attributable to error of the Commonwealth and recovery of the debt cannot be waived on that basis.
waiver - special circumstances
36. Mr Anderson urged the Tribunal to waive recovery of his debt on the basis that there are special circumstances that make it appropriate to do so. The special circumstances to which Mr Anderson drew attention were the alleged Commonwealth errors in relation to his Austudy claim, recent difficulties in his relationship with the mother of his young child (and difficulties dealing with Centrelink in that regard), health concerns for the child in utero and financial hardship.
37. The Commonwealth’s right to recover all or part of a debt may be waived if there are special circumstances that make it desirable to do so. That discretion is only enlivened if the debtor did not knowingly fail or omit to comply with the Act or make a false statement or representation, and it is more appropriate to waive rather than to write-off the debt.
38. It was not asserted that Mr Anderson had knowingly made a false statement or representation. Even though Mr Anderson provided incorrect information concerning the number of course work hours per week in his course, I am satisfied that he did so out of ignorance and ineptitude. Mr Anderson failed to complete all the relevant questions in his Austudy claim form and failed to provide evidence of his enrolment with his claim. Those omissions were cavalier and possibly imbued with reckless disregard. However, I am satisfied that they were not done knowingly, within the meaning of that word that was adopted in Re Secretary, Department of Family and Community Services and Jonauskas (2001) 65 ALD 553, with which I respectfully agree. It follows that Mr Anderson is not excluded from the discretion to waive his debt if special circumstances are found and make it desirable to do so.
39. The term ‘special circumstances’ is not defined but includes circumstances that are unusual, uncommon or exceptional (Beadle v Director-General of Social Security (1985) 7 ALD 670) or if something unfair, unintended or unjust occurs as a result of the application of the relevant provision or principle of liability under the Act (Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545). It is necessary to balance the reasonable expectation of taxpayers that debts will be recovered from those who have received social security payments to which they are not entitled, and the public interest in the administration of the social security system in a manner that is fair, reasonable and just in the circumstances (see Secretary, Department of Social Security v Hales (1998) 82 FCR 154 at 155).
40. A strict application of the debt recovery rules in this case would, I am satisfied in the circumstances, be unfair and would produce an unjust result within the context of the Newstart Allowance and Austudy payment scheme under the Act. The Commonwealth committed a series of administrative errors that constitute special circumstances. Mr Anderson was given incorrect advice by his job network provider. Centrelink used arbitrary information that was not properly obtained when assessing Mr Anderson’s Austudy claims. Centrelink failed to verify Mr Anderson’s enrolment at the University or his status as a student when assessing his Austudy claims. Centrelink failed to act in a timely manner on information in its possession concerning Mr Anderson’s study workload. Centrelink’s reviews of Mr Anderson’s case were fragmented and were not completed in a timely manner. I am satisfied that the errors of Commonwealth are at the extreme, and constitute special circumstances.
incorrect advice
41. Mr Anderson claimed Austudy on the advice of Mr Neal, on the understanding that he was undertaking the Equine Studies distance education course on a full-time basis and would be transferred from Newstart Allowance to Austudy.
42. A social security claimant or recipient is entitled to rely on information he or she is given by the Commonwealth in relation to their claim, payment or benefit.
43. Mr Neal was an agent or representative of the Commonwealth when he gave Mr Anderson incorrect advice. The advice was given in the context of negotiating a Job Search Plan and Preparing for Work Agreement with Mr Anderson. I am satisfied that Mr Anderson negotiated with Mr Neal in good faith and relied on the information and advice he was given when considering education options. Consistent with the outcome of his negotiations with Mr Neal, Mr Anderson enrolled in the Equine Studies distance education course. In so doing he relied on incorrect advice he was given by Mr Neal that the course was full-time and would qualify him for Austudy. Mr Neal was not called to give evidence and the Respondent did not seriously challenge Mr Anderson’s evidence on this point.
44. This Commonwealth error is at the heart of Mr Anderson’s case. It marks the beginning of a sequence of events involving cumulative error that have given rise to Mr Anderson’s debt. As will appear, had Centrelink properly administered and assessed Mr Anderson’s claim the initial error of Mr Neal would have been identified and addressed prior to the grant of Austudy to Mr Anderson.
arbitrary information
45. Centrelink used arbitrary information that was not properly obtained when assessing Mr Anderson’s Austudy claims in March 2004 and December 2004.
46. A social security claimant is entitled to expect that his or her claim will be properly assessed.
47. Mr Kenny filed written submissions for the Respondent dated 16 June 2006 in which he asserted that:
“… Centrelink was not asked to resolve any question about the applicant’s entitlement to austudy for his course. Centrelink cannot be expected to assess claims otherwise than in accordance with the information provided on the claim form.
It is the responsibility of a mature adult commencing tertiary education to accurately complete his claim and to read and apply the instructions and explanatory information provided. Centrelink is entitled to accept as accurate the statements made in claims and review forms and to grant or continue payments accordingly.”
48. Plainly enough, Centrelink was required to determine whether or not to grant Mr Anderson Austudy. That is the essential consequence of a claim for Austudy (s36, Social Security (Administration) Act 1999 (“the Administration Act”)). The question whether or not to grant Austudy is a question of entitlement or qualification, in relation to which Centrelink must make an assessment (s37, Administration Act). It is for that purpose that a claimant is required to provide certain information when making a claim on the appropriate form. The particular information that is required of a claimant in a claim form is for the purpose of determining whether or not to grant the claim.
49. Mr Anderson omitted to provide an end date for the Equine Studies course in which he was enrolled in the Austudy claims he lodged in March 2004 and November 2004. Plainly enough, Centrelink could not rely solely on the information provided by Mr Anderson in his claim forms, which were deficient.
50. Subsequently, a Centrelink officer entered incorrect and arbitrary dates into his records (3 December 2004 (T8) and 20 December 2006 (T14) respectively) for the purpose of processing his claims. That information was inserted without reference to Mr Anderson, Campbell Page or the University. In both cases the information was incorrect and arbitrary; neither date approximated the end date of the six year distance education course in which Mr Anderson was enrolled.
51. Mr Kenny informed me that the practice of using arbitrary course end dates is reasonably common in Centrelink; the practice is intended to expedite the processing of Austudy claims without causing unnecessary delay.
52. Under social security law the onus is placed on the claimant of a payment or benefit to provide complete and correct information. There are penalties for deliberately giving false or misleading information. Centrelink has the power to obtain information and to make any enquiries necessary to determine a claim.
53. If deficiencies are found in a person’s claim form that prevent proper assessment of the claim, there is a powerful obligation on Centrelink to apply proper and due process to address the deficiency. There are two options: refer the matter to the claimant, or initiate enquiries to obtain the required information. In this case on at least two occasions Centrelink did neither, relying instead on arbitrary information of its own creation. That is contrary to the principles of good public administration and it is not proper, nor reasonable, nor just.
54. The singular occurrence of such an administrative error may be understood in its circumstances. However, the repetition of such errors as a matter of common practice for the convenience of a Commonwealth agency is a different matter entirely, and cannot be condoned. When such poor practices contribute to the incorrect assessment of a claim and the payment of public monies to a claimant without proper entitlement, and the subsequent raising of a debt against the person, there is an assault on the public interest in the fair, reasonable and just administration of the social security system. That is especially so when the claimant is a person who is impecunious and reliant for their sole income on income support payments by the Commonwealth.
55. Centrelink did not require Mr Anderson to properly complete the claim form and did not obtain the relevant information from the University or Campbell Page, deciding instead to use arbitrary dates without knowledge of the actual end date of the course in which he was enrolled. The purpose of requiring a claimant to provide a course end date is to enable an assessing officer to verify the duration of the course; it is a factor that may be relevant when assessing whether a person is a full-time student. For that purpose it was for Mr Anderson to inform Centrelink about the end date of the course in which he was enrolled or, in the alternative, it was for Centrelink to obtain that information from the University or Campbell Page.
56. If accurate information was provided or obtained about the end date of the course in which Mr Anderson was enrolled, Centrelink would have been in a position to properly assess Mr Anderson’s claims. Mr Anderson’s statement that he was a full-time student could then have been assessed in relation to the duration of the course in which he was enrolled, which will not end until 2010. Centrelink’s errors meant that no such comparative assessment could be made.
failure to verify
57. When processing Mr Anderson’s claims in March 2004 and December 2004 Centrelink did not verify his status as a student or details of his enrolment.
58. There is an onus on Centrelink to properly determine a claim in accordance with applicable law. A claimant for Austudy is required to provide documentary evidence of their status as a student and details of enrolment in an eligible course. The purpose of requiring such documents is to verify that the person is a student enrolled in an eligible course. Those are matters at the heart of a person’s qualification for Austudy. They are centrally relevant to the determination of an Austudy claim.
59. The documents Mr Anderson lodged with his Austudy claim in March 2004 included a response from the University to his enquiry about courses and an offer of admission with an attached external Equine Studies course structure. Those documents are not proof that Mr Anderson was enrolled in the course or that he was a student. It follows that Centrelink did not verify Mr Anderson’s status as a student or the details of the course in which he was enrolled.
60. The import of failing to properly verify Mr Anderson’s status as a student meant that details of his enrolment were not considered when assessing his claims in March 2004 and December 2004. When those failings are considered in relation to the manner in which Centrelink used arbitrary and incorrect course end dates to supplement Mr Anderson’s incomplete claim forms, it can be seen that his claims were not properly managed and he was denied the benefit, and protection, of having his claims properly assessed.
failure to act and delay
61. Mr Anderson’s case was selected for data-matching review in July 2004 and information about his enrolment was obtained from the University. Centrelink records reveal that on 26 July 2004 Mr Anderson was recorded to be a part-time external student undertaking a study load of 0.25 for semester 1 of 2004 (T9). He was sent a notice requiring information about his enrolment by 20 August 2004 (T10). Mr Anderson did not respond to this notice. However, no action was taken by Centrelink to cancel Mr Anderson’s Austudy payment at that time.
62. On 18 November 2004 the Centrelink records show that Mr Anderson was a part-time external student with a total study load for semester 2 in 2004 of 0.25, being 50 percent of the full-time study load (T11). In Mr Kenny’s submission no action was taken on receipt of this information. However, coincidentally Mr Anderson’s Austudy was canelled on 4 December 2004 as the result of an ‘end of course review’ that was triggered by the arbitrary course end date (3 December 2004) previously entered by a Centrelink officer in March 2004.
63. On 4 December 2004 Mr Anderson’s Austudy was cancelled “because you are not studying full-time or you have ceased studying” (T12). However, Mr Anderson had not ceased studying and informed Centrelink on 16 December 2004 that he would be continuing with the same course (T13). He lodged a claim form for continuation of Austudy in which he stated that he would be continuing the course full-time, but omitted to include the course start and end dates (T14). Centrelink inserted an arbitrary course end date without reference to Mr Anderson or to the University and reinstated Mr Anderson’s Austudy payments from 4 December 2004. There is no evidence that Centrelink verified Mr Anderson’s status as a student or the details of his enrolment at that time. In those circumstances it is surprising, to say the least, that Centrelink reinstated his payments when Centrelink’s records plainly reveal that Mr Anderson was not a full-time student at any time during 2004.
64. On 8 April 2005 a Centrelink officer involved in the data-matching review wrote to obtain information from the University. The University provided information on 12 April 2005, which showed that Mr Anderson was enrolled as a part-time student from February 2004 and that his enrolment was (then) ongoing (T16). The officer moved to cancel Mr Anderson’s Austudy payments forthwith.
65. As can be seen from this history, Centrelink had information that Mr Anderson was not a full-time student in July 2004. His Austudy payment should have been cancelled at that time or soon thereafter. In November 2004 Centrelink had further information that Mr Anderson was not a full-time student, but no action was taken. His Austudy payment was cancelled on 4 December 2004, but for an incorrect reason that paid no regard to Mr Anderson’s actual course details or his course load. That Mr Anderson’s Austudy payment was reinstated on the basis of an incomplete form, an arbitrary course end date created by Centrelink and without reference to relevant Centrelink records to which I have referred or to the University can only be described as an extraordinary error.
66. The Respondent did not challenge the Social Security Appeals Tribunal decision to waive Mr Anderson’s debt that accrued in the period from 21 August 2004 to 15 December 2004. However, the Respondent asserted that on 16 December 2004 Mr Anderson repeated his claim to be a full-time student when he was not, whereby the special circumstances ceased to exist. I do not agree. I am satisfied that Centrelink’s defective administration of the review processes concerning Mr Anderson’s case did not cease and were not resolved on 16 December 2004. Mr Anderson asserted that nothing had occurred to change his understanding about his enrolment or his qualification for Austudy in the period from 16 March 2004 to 15 December 2004. I accept his evidence that his workload, including the practical components of his course, was at least 30 hours per week in 2004. I also accept his evidence that his Higher Education Contribution Scheme statements did not contain any information about part-time or full-time enrolment status. On that evidence, I accept that Mr Anderson’s error describing his enrolment as full-time is a further reflection of the advice he was given by Mr Neal. Furthermore it was an error of understanding that was reinforced by Centrelink accepting his claim and paying him Austudy throughout 2004.
other circumstances
67. Mr Anderson gave evidence about his financial circumstances. I accept that he faces financial difficulties. His financial circumstances are straitened. However he owns a property at Cobargo and he owns his own vehicle. He is presently repaying debts to the Commonwealth at the rate of $80 per fortnight by deduction from his Newstart Allowance. He gave evidence about his fortnightly income and expenditure. I am satisfied that Mr Anderson’s financial circumstances are not substantially different from many of those who rely on the Commonwealth for income support.
68. Having heard Mr Anderson’s evidence concerning difficulties in his relationship with the mother of his young child, and the health scare (and related costs) they experienced before the child’s birth, I am reasonably satisfied that those circumstances are not special. Fortunately the child is in good health, as are the parents. Relationship difficulties are unfortunately commonplace. The difficulty Mr Anderson experienced dealing with Centrelink in relation to his place of residence is a matter to be dealt with on the merits at law, and is not a special circumstance for present purposes.
conclusion
69. The Commonwealth’s administrative errors in this case, in particular Centrelink’s defective administration, are extraordinary and at the extreme. Mr Anderson was entitled to expect that Centrelink would properly administer and assess his claim. That did not occur. Centrelink did not refer the deficient claim to Mr Anderson to be properly completed, nor did it obtain accurate information in order to process his claim. Arbitrary and incorrect information was used as a matter of common practice and convenience, ostensibly for Mr Anderson’s benefit.
70. I am satisfied, in those circumstances, that recovering Mr Anderson’s debt, in full, will produce a result that is unjust, harsh and manifestly unfair. In sum, the errors of the Commonwealth effectively denied Mr Anderson the opportunity to structure his studies in order to qualify for Austudy or to negotiate a Job Search Plan or Preparing for Work Agreement in terms that would enable him to meet the applicable activity test for Newstart Allowance. The debt is substantially not of his making. In his presently impecunious circumstances recovering the debt in full would be harsh.
71. It follows that I find that special circumstances exist that make it desirable to waive Mr Anderson’s debt.
72. Nonetheless, Mr Anderson was partly responsible for what has occurred. His cavalier attitude to his obligations and responsibilities under the social security scheme and his failure to properly ensure the accuracy and completeness of information he provided on his claim for Austudy, and his repeated failure to provide required information, must be taken into account.
73. Mr Anderson has been repaying his debt by deduction from his Newstart Allowance, albeit at a low level.
74. Considering all of the circumstances, and balancing the competing interests to which I have referred, I am satisfied that special circumstances exist that make it appropriate to waive the Commonwealth’s right to recover the amount of Mr Anderson’s debt that is presently outstanding. This means that the amount of the debt that Mr Anderson has repaid will not be reimbursed to him.
75. It follows that the decision under review is set aside. The Tribunal decides, instead, that special circumstances exist that make it desirable to waive the balance of Mr Anderson’s debt that is presently outstanding.
I certify that the 75 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: Peter Strauch .....................................................................................
AssociateDate of Hearing 8 June 2006
Date of Decision 4 July 2006
Representative for the Applicant Judith Anderson
Solicitor for the Respondent John Kenny
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