Bigham and Department of Family and Community Services

[2001] AATA 692

DECISION AND REASONS FOR DECISION [2001] AATA 692

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2001/225

General Administrative  DIVISION      )          
           Re      STEVEN BIGHAM
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Miss WJF Purcell (Senior Member)        

Date2 August 2001

PlaceAdelaide

Decision      The Tribunal refuses the application for extension of time.           

(Signed)
  WJF PURCELL
  (Senior Member)
CATCHWORDS
SOCIAL SECURITY - PRACTICE AND PROCEDURE - Application for Extension of time - conceded that debt arose solely as a result of administrative error - lack of merit in substantive application.
Social Security Act 1991 s29(7) and (8) s1237A.(1A)

REASONS FOR DECISION

2 August 2001                    Miss WJF Purcell (Senior Member)                    

1. This matter came on for Hearing on 2 August 2001.  I refused the application for extension of time, and informed the parties that brief Reasons for Decision would be provided forthwith.

2. This is an application, dated 11 July 2001, for extension of time within which to make an application for review of a decision of the Social Security Appeals Tribunal (SSAT) of 18 April 2001, which affirmed the decision of an Authorised Review Officer of 14 March 2001, to raise a debt of $870.30 of Austudy Payment.

3. The applicant appeared on his own behalf and Mr Underwood, Departmental Representative, represented the Respondent (the Department).

4. Section 29 of the Administrative Appeals Tribunal Act 1975, so far as is relevant , provides:

   "…

   (7)The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section).

   (8)The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.

   …"

5. The applicant, who was aged 33 years at the date of the SSAT decision, has been in receipt of Disability Support Pension (DSP) since 1991.  On 1 February 2001, he attended a Centrelink office to claim Austudy Payment as he had enrolled in a 3-year Diploma in Christian studies.

6. When the applicant lodged a claim for Austudy Payment, the Departmental officer noted that he was already in receipt of DSP.  He was advised to continue on that payment but claim an education supplement in relation to his studies as this would be more financially advantageous.  The applicant indicated that he preferred to claim Austudy Payment.

7. Austudy Payment was granted, but the Department failed to cancel his DSP pursuant to section 103 of the Social Security Act 1991 (the Act). Due to an administrative error the applicant received both payments for the period 31 January 2001 to 13 March 2001 and the applicant was paid $870.30 by way of Austudy Payment, to which he had no entitlement. On 13 March 2001, a debt was raised within six weeks of the original incorrect payment.

8. The provision to waive a debt, where an administrative error has occurred is in section 1237A(1A) of the Act:

   "1237A.(1A) Subsection (1) only applies if:

   (a) the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or

   (b) if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;

   whichever is the later."

9. The applicant maintains that he was unaware that he could not be paid both disability support pension and Austudy and had to find the money for his fees out of his pension.  He should not have to repay the Austudy Payments to which he was not entitled as this was, in effect, like holding him accountable for someone else's mistake.  By way of explanation for the late filing of his application, the applicant stated that he thought that he had to wait 28 days before he could lodge an application with Tribunal, but has no explanation why the application was not lodged until more than 3 weeks later.  This is not, in my view, a satisfactory explanation for the delay.

10. The applicant says that he is convinced that the overpayment of $870.30 is not a debt. It should not be paid by him, but by the Department which made the error.  It is not fair that he be called upon to repay the money when he told the Department he was in receipt of DSP and the Department, in error, paid the extra amount.

11. On the question of merit, it is clear that the applicant was not entitled to the two payments of DSP and Austudy.  The Austudy Payment from 31 January 2001 to 13 March 2001, was not payable, and a debt of $870.30 arose payable to the Commonwealth.  The debt was raised within 6 weeks from the first payment that caused the debt.  The discretion provided in Section 1237A(A1) of the Act is not applicable therefore.

12. I consider that there is nothing the applicant has raised which could give rise to the appropriate use of discretion in special circumstances.  The applicant has received moneys to which he was not entitled;  this gave rise to an overpayment, which is a debt due and owing to the Commonwealth which cannot be waived pursuant to Section 1237A(1A) of the Act.

13. I consider his application for review is without merit, and in all the circumstances of the matter, it is not appropriate that an extension of time be granted pursuant to Section 29 of the Administrative Appeals Tribunal Act 1975.

14. For these reasons the Tribunal refuses the application for extension of time.

    I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Miss WJF Purcell (Senior Member)

    Signed  (F M Boekamp)
      Personal Assistant

    Date/s of Hearing  2 August 2001
    Date of Decision  2 August 2001
    Counsel for the Applicant        In Person
    Solicitor for the Applicant         -
    Counsel for the Respondent    Mr Underwood
    Solicitor for the Respondent    Centrelink