AYNUR AKSU and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2010] AATA 358

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 358

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/6135

GENERAL ADMINISTRATIVE DIVISION		)
Re		AYNUR AKSU

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr S E Frost, Senior Member

Date14 May 2010  

PlaceSydney

Decision The decision under review is affirmed.

................[sgd]..............................

S E Frost
  Senior Member

CATCHWORDS

SOCIAL SECURITY – youth allowance – payment for full-time study when claimant studying only part-time – debt to the Commonwealth – whether debt can be written off – whether debt should be waived – whether debt attributable solely to an administrative error made by the Commonwealth – “special circumstances” – decision affirmed

LEGISLATION

Social Security Act 1991 – s 541B, 1236, 1237A, 1237AAD

REASONS FOR DECISION

14 May 2010

Mr S E Frost, Senior Member       

Introduction

1.      The respondent Secretary claims that Ms Aksu was paid an amount of youth allowance that she was not entitled to.  This overpayment is said to arise from a period when Ms Aksu was receiving the allowance for undertaking full-time study at the University of Western Sydney (UWS) even though she was only studying part-time.  Throughout the Centrelink internal review process, and on up to the Social Security Appeals Tribunal (SSAT), the debt that Centrelink claims has been confirmed.  Ms Aksu now asks this Tribunal to review the decision. 

The issues

2.      The main issue is whether youth allowance has been overpaid to Ms Aksu, with the consequence that she has a debt to the Commonwealth.  If she has such a debt, then the Tribunal will need to consider whether the debt should be written off or waived.

Factual background

3.      Early in 2006, when she was a student in year 11 at high school, Ms Aksu applied for and was granted youth allowance.  She finished year 12 at the end of 2007, and on 4 January 2008 Centrelink wrote to her to explain that she should attend an interview “to discuss your recent completion of a Centrelink Approved Activity or Program”.  The interview was arranged for 29 January 2008.

4.      Ms Aksu does not specifically remember receiving that letter.  Whether she received it or not, she failed to attend the interview. 

5.      At about this time she became aware that Centrelink had stopped paying her youth allowance (it seems that the last payment was made on 27 December 2007).  On 31 January 2008 she phoned Centrelink to ask why the payments had stopped.  The departmental file note of her discussion with a Centrelink officer indicates that the officer reinstated payment of youth allowance, including back pay, on the officer’s understanding that Ms Aksu was studying full-time.  The file note says that the officer updated Ms Aksu’s records to show that she was undertaking an “Everyday life course” from February to August, and that this was a full-time course. 

6.      On the same day, and no doubt as a result of that telephone discussion, Centrelink sent a letter to Ms Aksu to inform her that she was entitled to an immediate payment of arrears, and also regular fortnightly payments from 8 February 2008.  The letter also said:

IMPORTANT INFORMATION

Your Youth Allowance is based on you studying full time at University of Western Sydney – Bankstown, Tertiary Group D Course with the course ending on the 25 August 2008. 

7.      Ms Aksu says that she told the officer that she would be studying part-time, not full-time.  If that is right, then Centrelink should not have reinstated youth allowance.

Does Ms Aksu have a debt to the Commonwealth?

8. To be entitled to youth allowance for the relevant period, Ms Aksu needed to be undertaking at least three-quarters of a normal full-time study load: s 541B(1)(b)(iii) of the Social Security Act 1991 (the Act).  She acknowledges that she was undertaking only one-half of a full-time load.  She has therefore been overpaid and she has a debt to the Commonwealth.

Can the debt be written off?

9.      A debt may be written off under subsection 1236(1) of the Act for a stated period or otherwise if, and only if, pursuant to subsection 1236(1A):

(a)the debt is irrecoverable at law; or

(b)the debtor has no capacity to repay the debt; or

(c)the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or

(d)it is not cost effective for the Commonwealth to take action to recover the debt.

10.     None of these circumstances apply in Ms Aksu’s case.  In particular, in relation to paragraphs (b) and (d), Ms Aksu is currently paying off the debt by way of modest fortnightly withholdings from her youth allowance payments.  The debt cannot be written off under s 1236 of the Act.

Should the debt be waived?

11.     There are two relevant waiver provisions.  The first is s 1237A of the Act and the second is s 1237AAD.

12.     A debt must be waived under s 1237A if the debt is attributable solely to an administrative error made by the Commonwealth and the debtor received the payments in good faith. 

13.     Even if the Centrelink officer incorrectly recorded the information that Ms Aksu provided in the telephone discussion on 31 January 2008 ([5] and [7] above) (and it is by no means clear that this is so), the immediate communication of Ms Aksu’s circumstances as they were understood by Centrelink at the time, in the form of the letter of the same date ([6] above), placed on Ms Aksu an obligation to notify Centrelink of the error.  She did not do this.  It therefore cannot be the case that the debt is attributable solely (even assuming that it is attributable at all) to Commonwealth error.  Ms Aksu contributed to the incorrect payment by failing to correct Centrelink’s misunderstanding.

14.     The debt cannot be waived under s 1237A of the Act.

15.     Section 1237AAD of the Act provides:

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.

16.     Paragraphs (a) and (c) are not in issue.  The question, then, is whether there are special circumstances applying to Ms Aksu that make it desirable to waive the debt.

17.     Ms Aksu informed me that she is in good health.  She is currently living at home with her parents, where she pays no board.  She is studying a TAFE course full-time and attends university part-time.  Her income consists entirely of fortnightly youth allowance payments, subject to the modest withholding referred to above.

18.     She could not point to any “special circumstances” applying to her.  She simply says that she did nothing wrong, and should not have to pay back the money.  From her perspective, she correctly reported her study details to Centrelink, and it was Centrelink’s error, not hers, that led to the overpayment. 

19.     I do not doubt Ms Aksu’s honesty.  I do not doubt her belief in the correctness of what she did.  However, she has received an amount of Commonwealth assistance to which she was not entitled.  There is no provision allowing the normal course of events (that is, for her to repay the money) to be overridden in her case.

Decision

20.     The decision under review is affirmed.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S E Frost, Senior Member

Signed:         ...........[sgd]..........................................................................
  Associate

Date of Hearing  10 May 2010
Date of Decision  14 May 2010
Applicant self-represented               
Appearance for the Respondent     Mr B Slattery, Centrelink Legal Services