Bindon and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 1023

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1023

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3606

GENERAL ADMINISTRATIVE DIVISION )

Re KERRY BINDON

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr R G Kenny, Member

Date14 November 2008

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..............[Sgd]................................

MEMBER 

CATCHWORDS

Social Security – Pensions, Benefits and Allowances – austudy payment – not undertaking qualifying study – not qualified for austudy – overpayment of austudy – debt due to Commonwealth – no basis to write off debt – overpayment not due solely to administrative error by Commonwealth – no special circumstances to justify waiver – no basis for waiver of debt – decision under review affirmed.

Administrative Appeals Tribunal Act 1975 s 37
Social Security Act 1991 ss 568, 569, 569A, 1223, 1236, 1237A, 1237AAD
Social Security (Administration) Act 1999 ss 68, 94

Beadle v Director-General of Social Security (1985) 7 ALD 670
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Re Beadle and Director-General of Social Security (1984) 1 AAR 362; 6 ALD 1

REASONS FOR DECISION

14 November 2008  RG Kenny, Member

APPLICATION

1.      On 9 July 2007, Mr Kerry Bindon lodged a claim with Centrelink for austudy payments in relation to the Graduate Certificate of Arts in Writing program he was to undertake at Swinburne University through Open Universities Australia.  This is a form of income support paid under the Social Security Act 1991 (“the Act”).  His claim was granted and payments were made to him from 10 July 2007.  On 7 March 2008, a Centrelink officer, on behalf of the Secretary, Department of Education, Employment and Workplace Relations (“the respondent”), determined that Mr Bindon had not been qualified to receive the payment in the period from 26 November 2007 until 3 March 2008 (the overpayment period) and that, as a result, he had been overpaid by $3,346.06 which was a debt due by him to the Commonwealth.  That decision was affirmed by an authorised review officer on 9 May 2008 and, in turn, by the Social Security Appeals Tribunal on 15 July 2008.  Mr Bindon has sought review of the decision by the Administrative Appeals Tribunal (“the Tribunal”).

DETERMINATION OF DEBT

2. To qualify for austudy payments, s 568 of the Act requires that the person must satisfy the activity test. Relevant to Mr Bindon’s matter is s 569(1) of the Act which provides that the activity test is met in respect of a period if he is, throughout the period, undertaking qualifying study. Under s 569A of the Act, in order to be undertaking qualifying study, the person must be enrolled in a course of education in an educational institution. Mr Hamilton, for the respondent, accepted that Mr Bindon was enrolled at Swinburne University during the overpayment period but submitted that he was not enrolled with Open Universities Australia at that time. He submitted that, because Mr Bindon was not enrolled during the overpayment period, he was not qualified for austudy payments in that period.

3. Mr Hamilton submitted that there was an obligation on Mr Bindon to advise Centrelink of the change in his enrolment status because of a notice, in the form of a letter dated 3 August 2007, given to him under s 68(2) of the Social Security (Administration) Act 1999 (“the Administration Act”). He submitted that, because of that failure to advise Centrelink, the austudy payment was cancelled for the overpayment period in accordance with the terms of s 94(1) of the Administration Act. Mr Hamilton submitted that, during the overpayment period, Mr Bindon was paid $3,346.06 and that, because of s 1223(1) of the Act, this was a debt due by Mr Bindon to the Commonwealth.

4.      Mr Bindon did not dispute the decision to raise the overpayment of $3,346.06 as a debt to be paid by him.  He conceded that he was not enrolled with Open Universities Australia for the overpayment period and that he failed to advise Centrelink of this.  He said that he was not aware that he had not been enrolled with Open Universities Australia and that the situation arose because, unbeknown to him, Open Universities Australia had four teaching periods in a year while Swinburne University had only three.  He had enrolled for all of the periods at Swinburne University but had omitted to enrol in the 4^th period at Open Universities Australia.

5. I accept that the concessions made by Mr Bindon were properly made and I am satisfied, from the documentation in evidence from Swinburne University, Open Universities Australia and Centrelink, that the respondent has correctly applied the provisions of the Act and the Administration Act, noted above; that Mr Bindon was overpaid in the amount of $3,346.06 in the overpayment period; and that this is a debt due to the Commonwealth.

SHOULD THE DEBT BE WRITTEN OFF OR WAIVED?

6.      While accepting that there is a debt owed by him, Mr Bindon submitted that it should be waived. 

7. A debt may be waived, under s 1237A of the Act, if it was attributable solely to an administrative error made by the Commonwealth. Mr Bindon conceded and I am satisfied that there was no error by Centrelink in this matter. A debt may also be waived under s 1237AAD of the Act which reads:

“s1237AAD    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 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.”

8.      It is not in dispute and I am satisfied that Mr Bindon did not knowingly make a false statement or false representation and did not knowingly fail or omit to comply with a provision of the Act.  Consideration must, therefore, be given to whether there are special circumstances other than financial hardship alone that make it desirable to waive Mr Bindon’s debt. 

9.      Mr Bindon referred to the activities in which he has been engaged over many years in relation to promotion of renewable energy methods.  He also described an invention that he was finalising and which would have dramatic impact on energy conversation in the building industry.  His work on this has been without financial assistance from the Commonwealth and he submitted that this was a special circumstance because waiving of the debt would acknowledge his work.  Mr Bindon also submitted that, if he had not been in receipt of austudy payments during the overpayment period, he would have received some other form of income support such as new start allowance.  Mr Bindon said that he is in good health and is managing financially, albeit with little to spare.  He also advised that he is continuing with his course and has one semester left to complete it. 

10. The Act provides no guidance as to the meaning of the term “special circumstances” in s 1237AAD of the Act. In Beadle v Director-General of Social Security[1], the Full Federal Court stated that it was not possible to lay down precise limits or precise rules for the meaning of the term.  The Court indicated that this would depend upon the circumstances of each particular case but commented that, even though the term lacks precision, it was sufficiently understood “not to require judicial gloss"[2].  There, the Court affirmed the decision of the Tribunal (Re Beadle and Director-General of Social Security (1984) 1 AAR 362) where (at 364) the Tribunal had acknowledged that the term was "incapable of precise or exhaustive definition" and that, to be special, the circumstances "must have a particular quality of unusualness that permits them to be described as special".

[1] (1985) 7 ALD 670.

[2] Beadle v Director-General of Social Security (1985) 7 ALD 670 at 674.

11.     In Groth v Secretary, Department of Social Security[3], Keifel J, after referring to the Federal Court's decision in Beadle’s case, observed (at 545) that special circumstances:

“would require something to distinguish... [the]... case from others, to take it out of the usual or ordinary case. ……. It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.”

[3] (1995) 40 ALD 541.

12. Mr Bindon’s devotion of his time to developing renewable energy modes and to his invention are praiseworthy endeavours. However, this activity does not provide a basis for waiving the debt. As for the reference to receiving an alternative form of income support, each of these has its own qualifying criteria and each requires the making of a formal claim. There is no evidence that those criteria would be met or that a claim was made. Mr Bindon’s financial situation is one which does not differ greatly from that of many other students undertaking a program of tertiary study. Indeed, he agreed that this was the case. I am satisfied that there are no factors, either individually or taken together, in Mr Bindon’s situation that enable it to be characterised as unusual or unfair and I am satisfied that there are no special circumstances in Mr Bindon’s case that would justify waiver of the debt under s 1237AAD of the Act.

13. The Act also makes provision for a debt to be written off under s 1236 of the Act if the debt is irrecoverable at law; or the debtor has no capacity to repay the debt; or the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or it is not cost effective for the Commonwealth to take action to recover the debt.

14.     The only component of that provision of potential relevance on this matter is that relating to lack of capacity to repay the debt.  Mr Bindon is now repaying the debt to the respondent through deductions from his current income support payments and I am reasonably satisfied that there is no lack of capacity for the debt to be repaid on that continuing basis.  In that situation, the debt should not be written off.

DECISION

15.     The decision under review is affirmed

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed: .......................[Sgd]......................................................
             Elizabeth Young, Research Associate

Date/s of Hearing  5 November 2008
Date of Decision  14 November 2008
Applicant was self-represented
For the Respondent                  Mr B Hamilton, Departmental Advocate