Ashton and Secretary, Department of Social Services (Social services second review)

Ashton and Secretary, Department of Social Services (Social services second review) [2017] AATA 2555 (5 December 2017)
Division:GENERAL DIVISION
File Number: 2017/2731
Re:Brooke Ashton
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:5 December 2017
Place:Brisbane

The Tribunal affirms the decision under review.
..................................[Sgd]......................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – Youth Allowance – overpayment – where applicant did not notify of change of circumstances – where no administrative error – where no special circumstances – decision under review affirmed
LEGISLATION
Acts Interpretation Act 1901 (Cth)
Social Security Act 1991
Social Security (Administration) Act 1999
CASES
Beadle and Director-General of Social Security (1984) 6 ALD 1
Secretary, Department of Family & Community Services v Sekhon [2003] FCA 76
Secretary, Department of Social Security v Hales [1997] FCA 1565; (1998) 82 FCR 154
Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190
REASONS FOR DECISION
Member D K Grigg
5 December 2017
BACKGROUND & CLAIMS HISTORY

At all relevant times Ms Ashton was a recipient of the Youth Allowance (“YA”). As far as Department of Human Services (“Centrelink”) was aware, while receiving the YA, Ms Ashton was enrolled as a full-time student studying a Bachelor of Health Science at the Australian College of Natural Medicine.[1]
[1] Exhibit 1, T Documents, T21, page 140, Centrelink Notice dated 21 July 2014.
Between December 2013 and July 2016 Ms Ashton was sent numerous notices from Centrelink informing her of the need to advise Centrelink within 14 days of any change in her circumstances (such as if her study load changed or if she ceased studying).[2]
[2] Exhibit 1, T Documents, T21, pages 133 – 136, letter from Centrelink to Ms Ashton dated 19 December 2013;
T21, pages 140 – 142, letter from Centrelink to Ms Ashton dated 21 July 2014; T21, pages 146 – 148, letter from Centrelink to Ms Ashton dated 12 November 2014; T21, pages 152 – 154, letter from Centrelink to Ms Ashton dated 13 November 2014; T21, pages 159 – 174, letters from Centrelink to Ms Ashton dated 20 December 2014, 5 January 2015, 17 February 2015, 21 July 2015, 22 February 2016, 24 March 2016, 21 July 2016.
The notice sent by Centrelink to Ms Ashton on 21 July 2014 confirmed that her entitlement to YA was based on her studying full-time and to notify Centrelink if her study load changed.[3] The Social Security (Administration) Act 1999 (“Administration Act”) provides that a recipient of a social security benefit is under an obligation to notify Centrelink to any relevant changes in their circumstances within 14 days.[4]
[3] Exhibit 1, T Documents, T21 pages 140 – 142, letter from Centrelink to Ms Ashton.
[4] Sections 68 and 72, Administration Act.
In semester one of 2015 Ms Ashton ceased her enrolment in the Bachelor of Health Science but did not inform Centrelink.[5]
[5] Exhibit 1, T Documents, T7, page 65, Ms Ashton’s enrolment/attendance report dated 23 October 2015.
On 2 August 2016 the Department of Human Services (“Centrelink”) sent Ms Ashton a notice requesting that she provide updated information concerning her education details.[6] The letter provided that if she did not contact Centrelink by 24 August 2016 that her Youth Allowance payments may be stopped.[7]
[6] Notice requesting information made in accordance with section 63 of the Social Security (Administration) Act
1999.
[7] Exhibit 1, T Documents, T21, page 175, Letter to Ms Ashton dated 2 August 2016.
Centrelink contacted the Australian College of Natural Medicine on 6 September 2016 and was informed that:[8]
(a)Ms Ashton’s study load between 2 July 2014 and 5 December 2014 was only 50%;
(b)Ms Ashton’s study load between 16 February 2015 and 19 June 2015 was full-time;
(c)Ms Ashton ceased studies on 19 June 2015;
(d)Ms Ashton returned to studying full-time in semester one of 2016 on 15 February 2016; and
(e)Ms Ashton was no longer enrolled from 19 June 2016.
[8] Exhibit 1, T Documents, T22, page 193, Records dated 7 September 2016.
On 8 September 2016 Centrelink advised Ms Ashton that her YA had been cancelled from 20 June 2016 because she was not enrolled at a nominated education institution.[9]
[9] Exhibit 1, T Documents, T21, pages 176 – 177, Letter to Ms Ashton dated 8 September 2016.
On 14 September 2016 Centrelink wrote to Mr Ashton to advise that:
(a)as her study workload from 2 July 2014 was not sufficient to qualify for Youth Allowance, she had been overpaid $10,139.35 (“YA Debt 1”) for the period 2 July 2014 to 5 December 2014 (“Time Period 1”) and that that amount was now recoverable;[10]
(b)as she ceased studying on 19 June 2015 she was not entitled to receive Youth Allowance from 20 June 2015 and as a result she had been overpaid $9,617.74 (“YA Debt 2”) for the period 20 June 2015 to 26 February 2016 (“Time Period 2”) and that that amount was now recoverable;[11] and
(c)as she ceased studying on 19 June 2016 she was not entitled to receive Youth Allowance from 20 June 2016 and as a result she had been overpaid $3,163.11 (“YA Debt 3”) for the period 20 June 2016 to 26 August 2016 (“Time Period 3”) and that that amount was now recoverable.[12]
[10]         Exhibit 1, T Documents, T8, page 66, Account Payable Notice dated 14 September 2016; T18, pages 127–128,
Debt Information.
[11]         Exhibit 1, T Documents, T9, page 68, Account Payable Notice dated 14 September 2016; T19, pages 129 – 130,
Debt Information.
[12]         Exhibit 1, T Documents, T10, page 70, Account Payable Notice dated 14 September 2016; T20, pages 131 –
132, Debt Information.
Ms Ashton requested a review of the decision to raise the Youth Allowance Debts on the grounds that she was undergoing treatment for mental health issues during the dates in question and had been unable to attend seminars and tutorials to a satisfactory level of attendance.[13]
[13] Exhibit 1, T Documents, T11, pages 72 – 73, Letter from Ms Ashton to Ms Ashton dated 14 October 2016.
Ms Ashton’s grandmother, Ann Wightman, was contacted by Centrelink on 3 November 2016. She told Centrelink that:[14]
(a)Ms Ashton was fit to study her online components of the course but was unable to engage in any part of the course that warranted face-to-face interaction;
(b)Ms Ashton was unable to get out of bed most days;
(c)Ms Ashton was unable to comfortably interact with crowds and other people;
(d)Ms Ashton did not advise Centrelink of her changed circumstances because she was enrolled full-time and therefore did not think that there was any problem; and
(e)the Centrelink letters do not request notification in times of illness.[15]
[14] Exhibit 1, T Documents, T21, page 207, Centrelink records dated 3 November 2016.
[15]However the Tribunal notes that the Centrelink letters do say that notification is required if you start or stop part time or full-time study, or are sick or injured and cannot continue studying.
On 10 November 2016 the Authorised Review Officer (ARO) affirmed the decision to raise the Youth Allowance Debts and found no administrative error on the part of Centrelink nor any special circumstances which would justify waiving the debts owed.[16]
[16]Exhibit 1, T Documents, T12 – T14, pages 77 - 116, Authorised Review Officer Decisions dated
Ms Ashton then sought a further review by the Social Services and Child Support Division (“SSCSD”) of this Tribunal.
The SSCSD affirmed the ARO’s decision on 6 April 2017.[17]
[17] Exhibit 1, T Documents, T2, pages 7 – 11, SSCSD’s Decision and Reasons for Decision dated 6 April 2017.
On 10 May 2017 Ms Ashton lodged an application for review of the SSCSD’s decision by this Tribunal.[18]
[18] Exhibit 1, T Documents, T1, pages 1–6, Application for Review dated 10 May 2017.

ISSUES FOR DETERMINATION

The issues for determination are whether:
(a)Ms Ashton has been overpaid her entitlement to Youth Allowance, resulting in YA Debts 1, 2 and 3; and, if yes
(b)the YA Debts 1, 2 and 3 are recoverable; and
(c)the YA Debts 1, 2 and 3 should be waived due to administrative error pursuant to section 1237A of the Social Security Act 1991 (“the Act”); or
(d)“special circumstances” exist such that YA Debts 1, 2 and 3 should be waived pursuant to s 1237AAD of the Act.

WAS MS ASHTON OVERPAID YOUTH ALLOWANCE PAYMENTS?

If a person is not entitled to the social security benefit they have obtained, the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment: section 1223(1) of the Act.
In this instance, for Ms Ashton to qualify for the Youth Allowance in Time Periods 1, 2 and 3 she must have satisfied an “activity test”: s 540 of the Act.
Section 541 of the Act provides that a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is:
“undertaking full-time study”; or
(b)actively seeking paid work and complying with the terms of an employment pathway plan (see section 541(1)(b) of the Act).
Pursuant to section 541(4) of the Act:
(4)   For the purposes of paragraph (1)(b), a person who has:
(a)   ceased undertaking full‑time study; and
(b) been given a notice under section 68 of the Administration Act that has the effect of requiring the person to inform the Department of that cessation; and
(c)   refused or failed to comply with the notice in respect of that cessation;
cannot satisfy the Secretary that, at a particular time after the refusal or failure, the person is actively seeking, and willing to undertake, paid work in Australia unless, before that time, the person has informed the Department of that cessation or the Department has become aware of that cessation. Note: For undertaking full‑time study see section 541B.
Section 541B of the Act sets out the requirements for when someone is taken to be undertaking full-time study. In this instance for Ms Ashton to satisfy this requirement he must have been:
(a)enrolled in an approved course of education at an educational institution; and
(b)undertaking at least two‑thirds of the normal amount of full‑time study in respect of the course for that period.

Ms Ashton’s Study History

On 19 December 2013 Ms Ashton notified Centrelink that she was now a full-time student.[19]
[19] Exhibit 1, T Documents, T22, page 181, Centrelink record dated 19 December 2013.
In January 2014 Ms Ashton enrolled in a Certificate in Natural Therapies, to be studied online through the Open College of Natural Therapies, and which commenced on

3 February 2014 and was due to end on 4 August 2015.[20]
[20] Exhibit 1, T Documents, T6, page 55, Open Colleges Confirmation of Enrolment dated 29 January 2014.
On 4 February 2014 Ms Ashton applied to withdraw from a Diploma of Beauty Therapy course provided by Think: Colleges Pty Ltd. On 10 February 2014 that withdrawal application was approved. The approval notification notes that the course was due to start on 28 October 2013 and that Ms Ashton was enrolled on a part-time basis.[21]
[21] Exhibit 1, T Documents, T6, page 61, Think: Colleges Pty Ltd approval of withdrawal application dated
On 28 May 2014 Endeavour College of Natural Health accepted Ms Ashton’s application to enrol in a Bachelor of Health Science (Naturopathy), to be studied online, and which commenced on 2 June 2014.[22]
[22] Exhibit 1, T Documents, T6, page 54, Endeavour College of Natural Health Acceptance Notice dated
On 10 July 2014 Ms Ashton telephoned Centrelink and advised that she:[23]
(a)had ceased her study in the Diploma of Beauty Therapy prior to the end of 2013;
(b)was engaged in online study through Open College; and
(c)was enrolled in a bachelor degree which was “starting now”.
[23] Exhibit 1, T Documents, T22, page 183, Centrelink records dated 10 July 2014.
The Centrelink officer advised Ms Ashton to provide detailed information confirming her study details and advised that she had to notify Centrelink within 14 days of any changes in circumstances, and that she may have an overpayment from her study in 2013 as a result of failing to notify that she had ceased studying the Diploma of Beauty Therapy.[24]
[24] Exhibit 1, T Documents, T22, page 183, Centrelink records dated 10 July 2014.
On 21 July 2014 Ms Ashton contacted Centrelink and advised that she would not be continuing full-time study in her current course and that her end date was 21 July 2014 but that she would be continuing to study in a new course in the next available semester.[25]
[25] Exhibit 1, T Documents, T22, pages 186 – 187, Centrelink records dated 21 July 2014.
On 30 July 2015 Endeavour College emailed Ms Ashton informing her that she was not currently re-enrolled for the semester 2 2015 study period.[26]
[26] Exhibit 2, Secretary's Statement of Facts Issues and Contentions dated 20 October 2017, Attachment A, A9,
On 10 August 2015 Ms Ashton emailed Endeavour College asking if it was possible for her to redo the course and that as a result of having to adjust her medication she had not been able to make her prior commitments.[27]
[27] Exhibit 2, Secretary's Statement of Facts Issues and Contentions dated 20 October 2017, Attachment A, A11,
On 12 September 2016, after her Youth Allowance had been cancelled, Ms Ashton contacted Centrelink and said that she:[28]
(a)had commenced semester 2 but discovered that she had enrolled in the wrong course so had to stop and re-enrol in the correct courses and that it was not until six weeks into semester 2 that she was told she could not commence in the correct courses until October; and
(b)had a medical condition that was permanent that her educational institution knew about.
[28] Exhibit 1, T Documents, T 22, page 200, records dated 12 September 2016.
There is no a dispute between the parties that during Time Periods 1, 2 and 3 Ms Ashton was not engaged in full-time study and did not satisfy the activity test in section 541 of the Act. There is also no evidence that Ms Ashton was actively seeking paid work and complying with the terms of an employment pathway plan (see section 541(1)(b) of the Act).
Therefore, Ms Ashton did not qualify for the YA in Time Periods 1, 2 and 3.
The Tribunal finds therefore that Ms Ashton owes the YA Debts 1, 2 and 3 to the Commonwealth.

IS THE YOUTH ALLOWANCE DEBT RECOVERABLE?

Even if a debt is owed, the Secretary may write off a debt in certain circumstances set out in section 1236 of the Act which provides:
1236Secretary may write off debt
(1)Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
(1A)The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a)   the debt is irrecoverable at law; or
(b)   the debtor has no capacity to repay the debt; or
(c)   ...; or
(d)   it is not cost effective for the Commonwealth to take action to recover the debt.
The Secretary must also waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt: section 1237A of the Act.
Further, the Secretary may exercise its discretion to waive the right to recover all or part of the debt if satisfied that:
1237AAD Waiver in special circumstances
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a)   the debt did not result wholly or partly from the debtor or another person knowingly:
(i)making a false statement or a false representation; or
(ii)failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b)   there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c)   it is more appropriate to waive than to write off the debt or part of the debt.
SHOULD THE YOUTH ALLOWANCE DEBT BE WRITTEN OFF? (S 1236)

Is the debt irrecoverable at law?

Section 1236(1B) sets out when a debt is taken to be irrecoverable at law:
(1B)           For the purposes of paragraph (1A)(a), a debt is taken to be irrecoverable at law if, and only if:
(a)   the debt cannot be recovered by means of deductions, or legal proceedings, or garnishee notice, because the relevant 6 year period mentioned in section 1231, 1232 or 1233 has elapsed; or
(aa) the debt cannot be recovered by means of deductions or setting off because the relevant 6 year period mentioned in section 86 of the A New Tax System (Family Assistance) (Administration) Act 1999 has elapsed; or
(b)   there is no proof of the debt capable of sustaining legal proceedings for its recovery; or
(c)   the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or
(d)   the debtor has died leaving no estate or insufficient funds in the debtor’s estate to repay the debt.
Ms Ashton’s debt is currently being repaid through withholdings of her Newstart Allowance payments.[29] None of the circumstances set out in section 1236 (1B) of the Act exist in this case and therefore the Tribunal finds that the debt is not irrecoverable at law.
[29] Exhibit 2, Secretary's Statement of Facts Issues and Contentions dated 20 October 2017, para 27, Attachment C,
Centrelink Records – Repayment History.
Further, sections 123(1) and 123(3) of the Administration Act state as follows:
123(1) A determination that:
(a) a person’s claim for social security payment is granted; or
(b) the social security payment is payable to a person;
continues in effect until:
(ba) the payment is cancelled by section 38M of the 1991 Act; or
(c)   a further determination in relation to the payment under section 80, 81 or 82, 124H, 124M or 124NF takes effect; or
(d)   the payment ceases to be payable under section 90, 91, 93, 94 or 95; or
(e)   the end of the day immediately before the day on which the person dies.
(3) A determination of the rate of a social security payment continues in effect until:
(a)   a further determination in relation to the payment under section 78, 79, 81A or 85A takes effect; or
(b) the payment becomes payable at a lower rate under section 98, 99 or 100.
Pursuant to section 100(1) of the Administration Act:
100 Automatic rate reduction—recipient not complying with subsection 68(2) notice
(1)     Subject to subsection (2), if:
(a)    a person who is receiving a social security payment is given a notice under subsection 68(2); and
(b)    the notice requires the person to inform the Department of the occurrence of an event or change of circumstances within a specified period (the notification period); and
(c)    the event or change of circumstances occurs; and
(d)    the person does not inform the Department of the occurrence of the event or change of circumstances within the notification period in accordance with the notice; and
(e)    because of the occurrence of the event or change of circumstances, the rate of the social security payment is to be reduced;
the social security payment becomes payable to the person at the reduced rate on the day on which the event or change of circumstances occurs.
Ms Ashton was under an obligation to advise Centrelink of any changes in her circumstances within 14 days: section 72 of the Administration Act. Because she failed to comply with her obligations, she ceased to be qualified to receive a social security payment and her YA was cancelled: section 94 of the Administration Act.

Because Ms Ashton was not entitled to the social security benefit she received in Time Periods 1, 2 and 3, the amount of the payment she received during that period is a debt due to the Commonwealth and arose when she obtained the benefit of the payment: section 1223(1) of the Act.

Does Ms Ashton have capacity to repay the debt?

Section 1236(1C)(a) of the Act provides that if a debt is recoverable by means of deductions from the debtor’s social security payment the debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the debtor being in severe financial hardship.
Severe financial hardship needs to involve severe or extreme financial suffering and that a person’s entire financial position would need to be materially less than the current rate of their pension.[30]
[30] Re Lumsden and Secretary, Department of Social Security [1986] AATA 228; Stubbs and Secretary, Department
of Family and Community Services [2003] AATA 729; L and Department of Social Security [1995] AATA 159; Secretary, Department of Family and Community Services and Birgden [2003] AATA 67.
A Statement of Financial Circumstances was completed by Ms Ashton on 6 March 2017 and provides that Ms Ashton:[31]
·is employed
·has household expenses of $20 per week
·owes Centrelink $22,000; and
·has a $1500 phone bill she currently pays back $20 per week.
[31] Exhibit 2, Secretary's Statement of Facts Issues and Contentions dated 20 October 2017, Attachment A,
Statement of Financial Circumstances dated 6 March 2017.
Ms Ashton has been paying approximately $82-170/fortnight towards repayment of the Youth Allowance Debts out of her Newstart Allowance.[32] She receives approximately $300-$400/fortnight by way of Newstart Allowance. The amount of Newstart Allowance payable and the amount of debt repayments deducted varies depending on what income Ms Ashton has earned. She currently works part-time in an administrative role, up to 20 hours/week, which pays $21/hour. Ms Ashton currently lives with her grandmother, Ms Ann Wightman.
[32] Exhibit 2, Secretary's Statement of Facts Issues and Contentions dated 20 October 2017, Attachment C.
There is no evidence to suggest that Ms Ashton suffers from severe financial hardship.
Ms Ashton told the Tribunal that she was pregnant and was concerned about how she would repay the debt in the future. The amount of debt recovered by Centrelink varies based on Ms Ashton’s financial income. If, as a result of having a child, she ceases work, this will no doubt be taken into account by Centrelink. Further, Ms Ashton can request Centrelink to reassess the amounts being deducted when and if her financial or other relevant circumstances change.

Is it cost-effective for the Commonwealth to recover the debt?

There is no indication from the Secretary that it is not cost-effective for it to recover the debt.

Conclusion

There is no basis for the debt to be written off under section 1236 of the Act.

DID MS ASHTON RECEIVE THE OVERPAYMENT IN GOOD FAITH AND WAS THE DEBT, OR A PROPORTION OF THE DEBT, ATTRIBUTABLE SOLELY TO AN ADMINISTRATIVE ERROR? (S 1237A)
Was the debt attributable solely to an administrative error?

If administrative error was the sole cause for the debt arising, the Secretary must waive the right to recover the debt. The debt “must be "attributable solely" to administrative error. It is not enough that, in the absence of administrative error, the debt would not have arisen. Administrative error must be the sole cause, not merely one of multiple causes”: Secretary, Department of Family & Community Services v Sekhon [2003] FCA 76, per Wilcox J (at [41]) and on appeal to the Full Federal Court Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190.
The YA Debts 1, 2, and 3 arose due to a failure to comply with the relevant notification requirements. As a result the debt owed by Ms Ashton was not ‘attributable solely to an administrative error made by the Commonwealth’ for the purposes of section 1237A(1) of the Act.[33]
[33] See Wecker v Secretary, Department of Education Science and Training[2008] FCAFC 108, at [102].

Should Debt 1 and/or Debt 2 be waived under section 1237AAD?

There are a few elements to be satisfied under section 1237AAD of the Act before a debt may be waived. First, the debt must not have arisen from the debtor, that is Ms Ashton must not have knowingly made a false statement or a false representation or knowingly failed or omitted to comply with a provision of the Act or the Administration Act. Second, there must be “special circumstances” (other than financial hardship alone) that make it desirable to waive. Third, it must be more appropriate to waive than to write off the debt or part of the debt.
The Act does not define what constitutes “special circumstances”.
However, decisions of the Federal Court make it clear that “special” denotes something different from the usual or ordinary.[34]
[34] Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541, at 545 per
Kiefel J, Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs v Jones (2012) 89 ATR 267; [2012] FCA 639, at [51], Boscolo v Secretary, Dept of Social Security [1999] FCA 106; (1999) 90 FCR 531, at [18]; Barker J in Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084, at [37].
French J (as he then was) said in in Secretary, Department of Social Security v Hales[1997] FCA 1565; (1998) 82 FCR 154, at 162:
The concept of special circumstances is broad. A constellation of factors, including financial circumstances, may fall within it. The express exclusion of financial hardship alone as a special circumstance is an indicator that it would otherwise be included. This gives some measure of the range of circumstances which will qualify as special. But as a matter of grammar and ordinary logic, the exclusion of financial hardship alone as a special circumstance does not mandate its inclusion in the range of matters constituting such circumstances for the purpose of enlivening the Secretary's discretion. ... The evident purpose of s 1237AAD is to enable a flexible response to the wide range of situations which could give rise to hardship or unfairness in the event of a rigid application of a requirement for recovery of debt. It is inappropriate to constrain that flexibility by imposing a narrow or artificial construction upon the words. It may be that there will be few cases in which the Secretary will be satisfied that there are special circumstances in the absence of financial hardship. It may be that there are few cases in which having found special circumstances to exist, the Secretary would exercise the discretion to waive in the absence of financial hardship. But to anticipate the limits of the categories of possible cases by imposing on the language of the section a fetter upon its application which is not mandated by its words, is to erode its useful purpose.
The Administrative Appeals Tribunal has also considered the phrase and held that the interpretation in Beadle and Director-General of Social Security (1984) 6 ALD 1, at [12] (i.e. that the circumstances must be unusual, uncommon or exceptional), applies to the Act.[35]
[35] See Hunnibell and Secretary, Department and Community Services [2004] AATA 992, at [19]; Papps and Secretary, Department of Family and Community Services [2005] AATA 660, at [37]
Ms Ashton contends that her mental health issues during Time Periods 1 and 2 (which gave rise to YA Debts 1 and 2) constitutes a special circumstance. Ms Ashton does not seek to argue the YA Debt 3 should be waived.
In October 2016 Dr Karen Provan, General Practitioner, reported that she had been treating Ms Ashton since 2013 and that in September 2013 she referred Ms Ashton to Dr Khan, Psychiatrist. Dr Khan diagnosed Ms Ashton with bipolar affective disorder and ADHD and started her on medications. Dr Provan reports that Ms Ashton had side effects from the medications prescribed by Dr Khan, including severe fatigue, anxiety, paranoia and insomnia and that due to the severity of the symptoms she was unable to attend college on many occasions. All medications were ceased in December 2014 and she was started again on lithium in 2015 but had severe side effects including headaches, poor concentration, panic attacks, severe nausea and severe fatigue which made her unable to attend coursework at Endeavour College. The symptoms escalated during this time and she was then assessed at Robina Hospital and diagnosed with a temporary “substance induced mood disorder” that did not require medication. Dr Provan reports that Ms Ashton is now mentally stable and well and no longer on medication.[36]
[36] Exhibit 1, T Documents, T11, page 74, Report of Dr Provan dated 10 October 2016.
Dr Provan provided a further report on 6 October 2017 and said that the medications that Dr Khan prescribed for Ms Ashton during 2015 and 2016 had:
… side effects such as sedation (extreme), nausea and an inability to concentrate. Due to these side effects, Brooke was unable to attend college 100% of the time. During this period, [Brooke] was under the care of her grandmother who would house, transport, and feed her, bring her to all the doctor’s appointments and help her with issues with Centrelink. I believe Brooke has genuinely attended college 75% of the time.[37]
[37] Exhibit 2, Secretary's Statement of Facts Issues and Contentions dated 20 October 2017, Report of Dr Provan
In her application to the SSCSD Ms Ashton explained her situation as follows:[38]
In early 2014 I gained a diploma of naturopathy, subsequently I enrolled at Endeavour College for a degree in naturopathy full time and was in receipt of Youth Allowance. Due to my ill health and mental state, attending all classes was a strain and I tried to keep up online. I was unaware of the percentage I was completing in college and how much I was doing online. Although my grandmother kept them informed of my situation because I was mentally unable to, she did not realise circumstances had changed in regard to Centrelink as I was still enrolled full-time. Centrelink has accepted I was ill because of the evidence I provided to them but they still say I should have told them my attendance was less than 75%. I said there is nowhere in Centrelink’s forms or information on the Internet where it says if you are sick and unable to attend college you must get a sick note and send it to Centrelink. They agreed but said if circumstances change you must tell them I wasn’t aware circumstances had changed as I had enrolled full-time each semester. Perhaps in hindsight I should have received sick pay and not Youth Allowance which I think is more or less the same each week. I have not deliberately tried to defraud Centrelink. I was misdiagnosed the best part of 18 months and the medication made me struggle with my studies and mentally incapable of everyday life. Yes I could go online and complete some work this is because I could do at night as the medication made it almost impossible for me to get out of bed, and it was my grandmother who tried to help me with my financial affairs (Centrelink) I have documentation from the doctor and the psychologist
[38] Exhibit 1, T Documents, T 15, pages 117 – 119, Application for Review of Decision dated 22 December 2016.
Ms Ashton’s grandmother, Ann Wightman, provided a statement and gave the following evidence before the Tribunal:[39]
·The medications prescribed by Dr Khan had a severe effect on Ms Ashton;
·Ms Ashton admits the debt of $3,163.11, which covers Time Period 3 and Debt 3, because she was not on any medication during that period and it was a misunderstanding by Ms Ashton. Ms Ashton thought she was enrolled full-time during that period and also believed that as long as she was enrolled that satisfied the criteria required for YA payments;
·Ms Ashton did not intentionally defraud Centrelink;
·Ms Ashton was unable to sustain a full-time load of study because of the medications;
·Because of Ms Ashton’s state of mind during this time she was not aware she had to inform Centrelink; and
·She was not aware that Ms Ashton had to be anything other than enrolled full-time.
[39] Exhibit 2, Secretary's Statement of Facts Issues and Contentions dated 20 October 2017, Statement of
Four alternative “special circumstances” were given to the Tribunal to explain why Ms Ashton had failed to notify Centrelink of her change in circumstances:
1.Ms Ashton said she thought that being enrolled full-time in a course was all that was required in order to obtain the YA and that she did not realise that study load was also relevant.
2.Ms Ashton said she continued to take the payments because she had presumed her YA had just converted to Newstart Allowance.
3.Ms Ashton says her mental health at the time meant she was unable to focus or deal with Centrelink requirements.
4.Ms Ashton said her grandmother had taken over responsibility of her affairs while she was unwell.
None of these submissions assist Ms Ashton.
First, even if Ms Ashton was not aware of her obligations to notify Centrelink, ignorance of the legal requirements is not a special circumstance. “Centrelink is not required to advise claimants about their legal rights to any particular social security payment or the rate of payment”.[40]
[40] See Brian Murphy and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 115, at [17]; See also: Ivor Biddlecombe and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 451; Barnard and Secretary, Department of Social Services [2016] AATA 436, at [47]; Scott v Secretary, Department of Social Security [1999] FCA 1774, and on appeal Scott and Another v Secretary, Department of Social Security [2000] FCA 1241
Second, there is no basis for Ms Ashton to have concluded that Centrelink, of its own accord without communicating with Ms Ashton, decided to change her YA payments to Newstart payments. Further, why would Ms Ashton have thought this if she was of the understanding that she was still entitled to YA?
Third, although it is accepted that Ms Ashton had ongoing mental health issues during Time Periods 1 and 2, that interrupted or disturbed Ms Ashton’s study progress, her health did not impair her ability to do some online study which means she could have engaged with and notified Centrelink about her change of circumstances. Further, in addition to the notices that were sent to Ms Ashton (which Ms Ashton accepted had been sent to her nominated postal address), Ms Ashton was advised by a Centrelink officer by telephone on 10 July 2014 of her obligations to advise if her circumstances changed. At any time Ms Ashton could have informed Centrelink of her true study load and her health issues, particularly once she realised she was continuing to receive YA payments. As a result Centrelink submits that Ms Ashton did not receive the payments in good faith.[41]
[41] Exhibit 1, T Documents, T 21, pages 209 – 210, Centrelink records.
Fourth, Ms Wightman was not Ms Ashton’s appointed nominee for Centrelink purposes and therefore the responsibility to inform Centrelink of Ms Ashton’s circumstances does not lie with her. The Tribunal places no responsibility for this on Ms Wightman. However, as referred to above, even if Ms Wightman was not aware of any need to notify Centrelink, ignorance of the legal requirements is not a special circumstance.
No other special circumstances have been raised for the Tribunal’s consideration. For the above reasons the Tribunal finds that no special circumstances exist within the meaning of section 1237AAD to warrant the exercise of the discretion in section 1237AAD to waive the debt.

DECISION

The decision under review is affirmed.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

..................................[Sgd].....................................
Associate
Dated: 5 December 2017

Date of hearing: 2 November 2017

Advocate for the Applicant: Ms Ann Wightman

Solicitors for the Respondent: Ms Claire Campbell
Department of Human Services

10 November 2016.

10 February 2014.

28 May 2014.

Email from Endeavour College to Ms Ashton dated 30 July 2015.

Email from Ms Ashton to Endeavour College dated 10 August 2015.

dated 6 October 2017.

Ms Wightman dated 9 October 2017.

[2017] AATA 2555

5 December 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Date of hearing:	2 November 2017
Advocate for the Applicant:	Ms Ann Wightman
Solicitors for the Respondent:	Ms Claire Campbell Department of Human Services