Archibald; Secretary, Department of Education, Science and Training and

[2007] AATA 1382

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1382

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S 200600173

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF EDUCATION, SCIENCE AND TRAINING

Applicant

And TARA ARCHIBALD

Respondent

DECISION

Tribunal Mr J G Short (Member)

Date29 May 2007

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

J G SHORT
  (Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – payment of Youth Allowance – whether debt exists – decision affirmed

Social Security Act 1991 s 541

REASONS FOR DECISION

29 May 2007	Mr J G Short (Member)
introduction

1.      Ms Tara Archibald had been in receipt of Youth Allowance (initially paid on the basis that she satisfied the activity test as a job seeker but then on the basis that she was a full-time student), for the period 12 August 2005 until 13 December 2005.  Ms Archibald is now again paid Youth Allowance on the basis that she is a job seeker.  On 10 January 2006 the applicant (the Department) made a decision to raise and recover an alleged overpayment of Youth Allowance in the sum $1903.40 paid during the period 12 August 2005 until 13 December 2005.  The debt was raised in reflection of a view that Ms Archibald was not a full-time student during this period.

2.      On 19 May 2006 the Social Security Appeals Tribunal (SSAT) set aside the Department’s decision and substituted a decision that Ms Archibald was qualified for Youth Allowance on the basis that she satisfied the activity test by a combination of activities.  The Department has now appealed that decision.

issues for determination

3.The issues for the Tribunal to determine are:

(a)whether Ms Archibald was overpaid Youth Allowance in the sum of $1903.40;

(b)if yes, whether this sum is a debt recoverable by the Commonwealth; and

(c)if yes, whether recovery of all or part of the debt should be waived or written off.

factual background to the dispute

4.      Ms Archibald provided evidence during which she described as correct the summary of information recorded by the SSAT in paragraph 8 of that Tribunal’s decision.  Ms Archibald said that the only variation to that summary is that she was told that she should complete 75 percent of her full-time study work-load within four months.  The SSAT’s summary of information reads as follows:

“8.  Miss Archibald spoke to the Tribunal and the following is a summary of the information provided:

·Miss Archibald said that she completed her Certificate 2 in Business in 2005 but she was still handing in her last assignments for this course while she was supposed to be doing her HSC Studies course.  She undertook the Business course by correspondence.  She recalled that she told Centrelink she had started that course.  She spoke with Dean at the Broken Hill office about the course but Centrelink regarded her as a job seeker while she did the course, and it was never put on as an approved activity.  She was supposed to finish the course by the end of November 2005 but she ‘sped through’ the course and finished it earlier.

·In August 2005, she commenced her HSC Studies course by correspondence at the OTEN TAFE.  She enrolled in six subjects only – Ancient History, Business Studies, English, Mathematics, Spanish and Textiles and Design and was regarded as a full-time student by OTEN TAFE.  From the beginning, she found it hard to get hold of the textbooks for her course.  In September or October 2005, she made a phone call to Centrelink to advise them of her difficulty in getting her Spanish textbook.  The officer with whom she spoke never told her that if she were unable to start any module in her course or do at least 75% of a full-time load, that she would not be regarded as a full-time student.  The letter from Sureway received by Centrelink on 6 February 2006 confirms the difficulties she had obtaining the textbook locally.  However, she started to do the modules for Business Studies and Ancient History for which she had books and materials.  She prepared around two assignments of the six due for each of these subjects by the end of November 2005.  She made the decision to send her assignments back in bulk because postage was expensive and it was cheaper to send in bulk.

·OTEN TAFE would not accept her assignments because by the time she was in a position to send them it was the end of their academic year.  She was able to submit them in January/February 2006 and she has since received her results for three assignments in those subjects.  She is unable to submit assignments until she gets back her results.  She started the other four subjects this year and she is now regularly submitting and receiving back her assignments for these and her other two subjects.  While she now has the textbook for Spanish, she needs a voice recorder for this subject and does not have sufficient funds to enable purchase yet.

·She delayed starting her four other subjects until 2006 because she needed other materials for her course – a cassette player for English, a Scientific Calculator for Mathematic [sic], and a sewing machine for Textiles and Design.  She has only just obtained the sewing machine.

·The course she undertakes is very flexible and does not start from a specific semester and she has one year to complete it.  She is confident that she can complete the course sooner than August 2006, the expected date of completion.  She is currently receiving youth allowance as a full-time student while she undertakes the course.  At the end of the course, she hopes to do the next HSC level and finish that by the end of 2006.  Her current course is the ‘preliminary’ year for the HSC.

·Miss Archibald strongly maintained that she informed Centrelink of the difficulties she was having in starting the other modules of her course.  She rang the Centrelink Youth 13 line and asked them if she could get help with the purchase [of] a sewing machine.  At the same time, she also advised about her problems with her textbooks.  Centrelink said that they could not assist her with the machine.  They never informed her that she would have difficulty meeting the youth allowance test as a full-time student.

·She advised Centrelink at other times.  For example, she was required to lodge fortnightly forms at the Broken Hill office and she would inform the person at the reception desk of her situation at various times when she lodged her forms.  At other times, she had ‘walk in’ appointments with Centrelink where she advised of her problems with her textbooks.  She recalled that she spoke with Teresa, Anne or Denise at Broken Hill about her situation.

·Miss Archibald said that although she did not start her modules for four subjects until 2006, she did a lot of preliminary reading for these subjects in 2005.  This is why she had indicated to Sureway she was ‘making progress’ (refer letter from Sureway received on 6 February 2006).

·Miss Archibald said that in the debt period she also spent about one to two hours a day job searching, for part-time, full-time or casual jobs.  She would go into Sureway on most weekdays and look for work from their touch screens.  She also looked for jobs in the local newspaper every day including Saturday, when there are more jobs available.  At home, she checked job sites on the Internet such as Career One, but there was not much work available in the Broken Hill area.  She applied for other jobs, which she got to know about by word of mouth.  She leaves her resume at potential work places.  Word of mouth is a most effective way of finding work in Broken Hill.  She applies for what she can but there is not much work available.

·She wanted to be a mechanic and she now is interested in becoming a truck driver, but she needs to be 21 years of age to get her licence.  She can get a permit and she is looking into that now.  She was offered bar work but she needs to get Responsible for the Service of Alcohol and Responsible for the Conduct of Gaming certificates, which cost $150 each, and she has no funds for this.  She is also interested in fashion design but Centrelink did not recognise this course.  She realised her Business course did not count for much so that is why she is doing her HSC.  She may be able to become a designer as a sideline but she needs to have some qualification behind her.  She may have a part-time job as a waitress, but this is not confirmed.

·Miss Archibald said the debt is causing her hardship and much stress.  She feels very depressed over it and has seen her doctor, who wanted to give her a medical certificate.  However, if she is unfit for study she will not be able to finish her courses as planned.  At the moment she has a virus and is also feeling unwell for that reason.

·She left home late last year because she found it impossible to study at home where she was forced to work at the dining table and there was too much chaos around.  She has three siblings aged five, nine and 18.

·She now rents a house privately and her rent is $130 a week.  She is sharing the house with some roustabouts but they are away a lot and they only contribute to the rent when they are there, which is not often.  Her youth allowance is around $303 a fortnight net after withholdings for the debt and repayment of an advance.  After her rent payment of $260 a fortnight she barely has enough money left over to buy food and pay her other bills.   This is why she cannot afford to buy things for her course.  The postage costs are very high, which is why she has trouble sending her assignments off at times.  Her mother helps a bit by buying groceries for her in recompense for when she accompanies her stepfather on his truck rides (for company and assistance).  She is close to her mother and stepfather but she cannot return home because of her inability to study there.

·Miss Archibald said she has a small casual job with Hoed Mystery Shopping and her earnings varied from $10 to $40 a week.  She may not work every week.  She declares her earnings to Centrelink via their website.

·In summation Miss Archibald considered that it was unfair that Centrelink are telling her she is overpaid youth allowance because she was not a full-time student.  If Centrelink had informed her correctly she could have been assessed as a job seeker, and done what was necessary to meet the activity test.  She is ‘flying through’ her course now and hopes to complete it in two months’ time, ahead of schedule.  She then hopes to complete the next level of her HSC in six months, instead of the usual 12 months.  The debt makes her feel she is being penalised because she is furthering her education.”

5.      It was accepted between the parties that Ms Archibald did not qualify for Youth Allowance on the basis of full-time study during the relevant period.  It was however suggested by Ms Archibald that she satisfied the activity test as part of her qualification for Youth Allowance, based upon s 541(1)(b) and/or s 541(1)(c) of the Social Security Act 1991 (the Act).  Section 541(1) reads as follows:

“541(1)  Subject to section 541A and subsection (3) of this section, a person satisfies the activity test in respect of a period if:

(a)the person satisfies the Secretary that, throughout the period, the person is undertaking full‑time study (see section 541B); or

(b)the person satisfies the Secretary that, throughout the period, the person is actively seeking, and willing to undertake, paid work in Australia (other than paid work that is unsuitable for the person); or

(c)the person takes reasonable steps, throughout the period, to comply with the terms of a Youth Allowance Activity Agreement applying to the person; or

(d)the person takes reasonable steps to comply, throughout the period, with a requirement of the Secretary notified to the person under subsection (2).”

6.      The SSAT purported to base its decision that Ms Archibald had satisfied the activity test on s 541(1)(c) of the Act, that is she was a person who took reasonable steps throughout the relevant period to “comply with the terms of a Youth Allowance Activity Agreement applying to the person”.  In its statement of facts, issues and contentions, the Department asserted that Ms Archibald could not satisfy s 541(1)(c) because she was not a person who had entered a Youth Allowance Activity Agreement.  At the outset of the hearing however, the Department tendered a two-page statement of policy (Exhibit A2) which in part reads as follows:

“… Young people who are able to demonstrate that they have met the activity test through activities other than study and who are not over YA age (21 for job seekers) will not have a debt raised against them.  This will generally apply for up to 3 months after the young person ceases study.  If they are unable to demonstrate that they have met the activity test, then a debt will be raised.

….

Flexibility of activity test

A wide range of activities may satisfy the YA activity test.  If a young person is not undertaking full-time study, they can satisfy the activity test by combining job search with other activities.  Some young people will only be required to look for part-time or temporary work while undertaking activities such as part-time study or training.

…”

The SSAT had referred to a different guideline. 

7.      The Department contended that the SSAT were in error in that there was no or insufficient evidence upon which the SSAT could have made a finding that Ms Archibald was genuinely seeking employment during the relevant period.

8.      Counsel for the respondent tendered a batch of documents which included a number of copy job applications and responses sent to and from Ms Archibald, generally during a period in 2005 until July 2005.  These documents were tendered on the basis that they indicated that Ms Archibald did have a genuine desire to find employment and had been taking reasonable steps to achieve that status.

9.      In her evidence, Ms Archibald said that she had, prior to commencing studies in August 2005, been attempting to find employment by applying (either by cold canvassing or by applying for advertised job vacancies), on one or two occasions each day.  She said that after she commenced study in August 2005 she continued those activities, although she said that her applications dropped to between seven and ten a fortnight.  In cross-examination Ms Archibald was asked why there were no copies of job applications sent during the debt period from 12 August 2005 until 13 December 2005.  Ms Archibald explained that she had been in the habit of printing out job applications and retaining replies but that she had only kept electronic records during the relevant period.  Her mother’s computer then had to be re-formatted during which the copy applications were lost.  She did however provide a list of potential employers she had regularly contacted during the relevant period.  She also referred the Tribunal to a copy letter from a Nichola Bradley, the Assistant Manager of Mario’s Palace Hotel.  This letter includes the following brief paragraph: “Tara came to me several times within 2005 enquiring about any positions vacant within the hotel”.

10.     Ms Archibald said that because she did not have a Responsible Persons qualification she was unable to work in the Mario’s Palace Bar, however she did perform voluntary work in October/November 2005 in the ice-cream parlour section of that hotel.  Since obtaining her Responsible Persons certificate she has performed further voluntary work at the hotel in the bar section.  The letter confirms that Ms Archibald now has “a high chance of being employed within our premises”.  Ms Archibald said that she had attempted to contact a number of the other potential employers recorded on a list included in her statement of facts and contentions.  She said that some of these people had said that they would provide confirmatory letters but had then failed to do so and that others had now left their positions and Ms Archibald no longer had their phone numbers.  She never had their mobile phone numbers.

11.     Ms Archibald said that during the relevant period she had also undertaken voluntary work at a public school canteen and had also commenced a dress-making course in order to gain employment in that trade.  She had discontinued that course of study as it was unsuitable for her.  She also referred to performing voluntary work for the Rescue and Rehabilitation of Australian Native Animals Inc.  A letter dated 16 July 2005 from that organisation confirms her voluntary activities at that time.  Ms Archibald said that during August to December 2005 she had undertaken fund-raising activities for this organisation each day for a 3-4 week period, selling raffle tickets between the hours of 9:00am and 3:00pm.  During this period she also performed up to three regular animal rescues each day.  Ms Archibald provided further evidence to the effect that since 2005 and currently, she has suffered with mental health problems.  She has now been prescribed anti-depressant medication by her local doctor. 

12.     Ms Archibald said that as there is no room for her to live at home she rents accommodation at a cost of $270 a fortnight.  She also has electricity bills and general living expenses.  Ms Archibald said that she currently has a debt of $10367.  She said that this includes $4000 owed to her mother who has provided food money.  Ms Archibald said that this debt figure does not include her Centrelink debt.  Ms Archibald said that her mother lives with her step-father and three siblings.  Her mother does not work and the family is dependent upon her step-father’s income.  It is from this income that Ms Archibald’s mother has provided the loaned monies.  Ms Archibald said that her debts include back rent of $1500, an electricity account of $500, a telephone bill of $1500, a $100 debt for work clothes, a $580 debt for past rent at previous accommodation, a $25 debt for a home phone, $500 on a credit card and $1500 on a personal loan.  Ms Archibald said that the only debt she is currently contributing towards is the past rent debt.  She is hoping to find work so that she can repay the other monies.  She said that she is not able to meet her living expenses from her Centrelink benefit and that Centrelink are currently withholding $30 a fortnight from her Youth Allowance.

13.     Ms Archibald said that she is maintaining job search efforts in Broken Hill but that as her mental health has declined she now has some mornings when she feels that she has lost confidence and does not want to go out.  Nevertheless, she is continuing to search for employment.

ms lee-anne burgess

14.     Ms Burgess is an employment consultant with Sureway Employment in Broken Hill.  She said that she had been Ms Archibald’s employment consultant from 13 April 2004 until 16 August 2005 when Ms Archibald’s status was changed from that of a job seeker to a full-time student.  Ms Burgess said that her records confirm statements from Ms Archibald to the effect that she had been genuinely seeking employment.  Her role in assisting Ms Archibald in this regard ended on 16 August 2005 when Ms Archibald was recorded as a full-time student.  Ms Burgess said that she could not confirm that Ms Archibald was attending regularly at Sureway in order to use the job search touch screens from August 2005 until December 2005 as the touch screens were not visible from her office.  Ms Burgess went on to tell the Tribunal that as far as job search activities for a young person in Broken Hill were concerned, it was considered satisfactory compliance with job-seeking requirements for a young person to apply, either in answer to job vacancy advertisements or by cold canvassing, for four jobs a fortnight.  Ms Burgess confirmed that if, as Ms Archibald had said, she had been applying for seven to ten jobs a fortnight, then this would be considered satisfactory compliance with Centrelink’s job search requirements.

consideration

15.     The Department’s contention was that the SSAT did not have any or sufficient evidence available to it to make a finding that Ms Archibald had been genuinely seeking employment during the relevant period.

16.     Before this Tribunal Ms Archibald provided evidence on affirmation.  Additional documentary evidence was also tendered on her behalf of various job applications made during the period of 2005 until about August of that year.  The documentary evidence also supported her evidence relating to voluntary activities. 

17.     I have had the opportunity to carefully listen to Ms Archibald’s evidence.  I accept that Ms Archibald has provided her evidence accurately.  I find that Ms Archibald has, since she first commenced to receive Youth Allowance, been genuinely attempting to earn and learn.  Her various courses have been aimed at gaining employment as have her commendable voluntary activities.  Ms Burgess said that by making four job applications a fortnight, a young person in Broken Hill would satisfy the activity test for payment of Youth Allowance.  I accept Ms Archibald’s evidence and find that she made between seven and ten such applications a fortnight during the alleged debt period.  In these circumstances I am satisfied that Ms Archibald satisfied s 541(1)(b) of the Act, that is, that she was a person who was “actively seeking, and willing to undertake, paid work in Australia”.  As such she satisfied the activity test and qualified for Youth Allowance during the relevant period.  Therefore no debt exists.  Although the SSAT purported to make the same decision, it based that decision on s 541(1)(c).  Nothing flows from this distinction.  Like the SSAT I am satisfied that no debt exists and consequently I will affirm the SSAT’s decision.

18.     In the light of the above-mentioned finding it is unnecessary to consider Ms Archibald’s potential satisfaction of the activity test under s 541(1)(c) of the Act or, if the debt had existed, whether the exercise of the discretions relating to waiver and write-off of recovery of a debt should be favourably exercised in this case.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)

Signed:         ...........J Coulthard..............................................
  Associate

Date of Hearing  7 May 2007
Date of Decision  29 May 2007

Advocate for the Applicant       Ms Martine Welfare

Centrelink Legal Services Branch

Advocate for the Respondent   Mr M de Rohan

Legal Service Commission