BNYP; Secretary, Department of Social Services and (Social services second review) - [2021] AATA 1549

BNYP; Secretary, Department of Social Services and (Social services second review) [2021] AATA 1549 (1 June 2021)
Division:GENERAL DIVISION
File Number: 2020/4743
Re:Secretary, Department of Social Services
APPLICANT

AndBNYP
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member
Date:1 June 2021
Place:Sydney

The decision under review is set aside and, in substitution, the Tribunal decides:
·the respondent was not eligible to receive youth allowance in the periods from 19 February 2010 to 5 December 2010 and 7 February 2011 to 7 June 2012;
·the respondent has youth allowance debts in the amount of $5,139.20 for the period from 19 February 2010 to 5 December 2010 and the amount of $10,202.63 for the period from 7 February 2011 to 7 June 2012; and
·the respondent’s debts are waived due to special circumstances pursuant to section 1237AAD of the Social Security Act 1991 (Cth).

................[sgd]........................................................
Dr L Bygrave, Member
CATCHWORDS
SOCIAL SECURITY – youth allowance – whether the respondent was entitled to receive youth allowance – whether the respondent has youth allowance debts – whether there are grounds for writing off or waiving all or part of the debt – whether debt should be waived by reason of sole administrative error – whether debt should be waived by reason of special circumstances – decision set aside and substituted
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25
Dranichnikov v Centrelink [2003] FCAFC 133
Secretary, Department of Family and Community Services v Sekhon [2003] FCA 76
Wendy Halliday as the Administrator of the Estate of the Late Ashley Pauling; Secretary, Department of Social Services and (Social Services second review) [2018] AATA 3865
SECONDARY MATERIAL
Youth Allowance (Satisfactory Study Progress) Guidelines 2014
REASONS FOR DECISION
Dr L Bygrave, Member
1 June 2021
INTRODUCTION

The respondent was in receipt of youth allowance from 27 January 2006 to 23 June 2012.
On 8 August 2012, the Department of Human Services (now Services Australia) (Centrelink) determined that the respondent was not undertaking full-time study during certain periods in 2010–2012 and asked her to repay the following youth allowance debts:
·$5,139.20 for the period from 19 February 2010 to 5 December 2010; and
·$7,260.93 for the period from 18 July 2011 to 7 June 2012.
The respondent sought view of this decision and, on 6 January 2014, an authorised review officer of Centrelink determined she had the following youth allowance debts:
·$5,139.20 for the period from 19 February 2010 to 5 December 2010; and
·$10,202.63 for the period from 7 February 2011 to 7 June 2012.
The respondent made regular repayments towards these debts in the period from 31 May 2016 to 14 April 2020.
On 15 May 2020, the respondent applied to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (the Tribunal) for review.
On 8 July 2020, the Member in the SSCSD considered the respondent’s application solely in relation to the requirements of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: BNYP; Secretary, Department of Social Services and (Social services second review) [2021] AATA 1549
Case: [2021] AATA 1549
Decision Date: 1 June 2021

CaseChat Overview and Summary

This matter concerned an appeal by the Secretary, Department of Social Services, against a decision regarding the respondent's entitlement to youth allowance and the subsequent creation of debts. The core dispute revolved around whether the respondent was eligible to receive youth allowance during specific periods in 2010, 2011, and 2012, and if not, whether any resulting debts should be waived. The Administrative Appeals Tribunal (AAT) was tasked with conducting a fresh review of the merits of the case, stepping into the shoes of the original decision-maker to determine the correct or preferable decision based on the evidence before it.

The legal issues before the Tribunal were whether the respondent was entitled to receive youth allowance during the periods from 19 February 2010 to 5 December 2010 and from 7 February 2011 to 7 June 2012, and if debts had been incurred, whether there were grounds to write off or waive all or part of these debts. Specifically, the Tribunal considered whether waiver was warranted due to sole administrative error or by reason of special circumstances. The respondent did not dispute that she was not undertaking a full-time study load during these periods but claimed she did not recall receiving letters from Centrelink and was unaware of the full-time study requirement for her allowance.

The Tribunal found that the respondent was not eligible for youth allowance during the specified periods because she was not undertaking a full-time study load as required. Despite this finding, the Tribunal determined that the respondent's circumstances were "out of the usual and ordinary" and that her youth allowance debts should be waived. The Tribunal set aside the previous decision and substituted its own, acknowledging the existence of debts totalling $5,139.20 for the first period and $10,202.63 for the second period, but ultimately waiving these amounts due to special circumstances pursuant to section 1237AAD of the *Social Security Act 1991* (Cth).

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In addition, subsection 68(2) of the Administration Act states that the Secretary may give a written notice to a person that requires them to inform Centrelink if a specified event or change of circumstances occurs that may affect their payment. Section 72 of the Administration Act outlines the provisions for a notice under section 68, including that it must be in writing and must specify how the person is to give the information to Centrelink.EVIDENCE The following facts in relation to the payment of youth allowance to the respondent and correspondence sent by Centrelink to the respondent are not in dispute:·The respondent received youth allowance from 27 January 2006 to 23 June 2012. ·The respondent advised Centrelink on 22 December 2009 that she intended to ‘continue study in the next available semester’.[4] [4] Exhibit T-T9, page 54.·Centrelink sent a letter to the respondent at her address on record on 22 December 2009. This letter advised the respondent that she had been assessed as eligible for youth allowance because of her ‘declared intention to study’ full-time and she must inform Centrelink within 14 days about events of changes in her circumstances including if she stops being a full-time student.[5] [5] Exhibit T-T10, pages 100-101.·On 9 February 2010, Centrelink sent a letter to the respondent at her address on record that stated her youth allowance was based on her studying full-time at TAFE in a course ending on 31 December 2010. This letter further stated that the respondent must tell Centrelink within 14 days if her ‘study load changes’ or she ceases study.[6][6] Exhibit T-T10, page 106.·Centrelink sent letters to the respondent about her youth allowance payments on 18 March 2010, 10 June 2010, 2 September 2010, 25 November 2010 and 6 December 2010. Each of these letters informed the respondent that she must tell Centrelink about any events or changes to her circumstances within 14 days.·On 16 December 2010, the respondent advised Centrelink that she intended to ‘continue study in the next available semester’.[7]·Centrelink sent a letter to the respondent at her address on record on 16 December 2010, which advised that she had been assessed as eligible for youth allowance because of her ‘declared intention to study’.[8] This letter stated that she must inform Centrelink within 14 days about events of changes in her circumstances including if she starts or stops ‘being a part-time or full-time student’.[9]·On 12 January 2011, Centrelink wrote to the respondent requesting full details of her course of study.·On 4 February 2011, Centrelink wrote to the respondent advising that her payment of youth allowance is based on her ‘studying full-time’ at TAFE in a course ending on 17 December 2011.[10] This letter further stated that the respondent must tell Centrelink within 14 days if she leaves ‘a training course before it ends’ or is absent for any period, or changes her enrolment.[11]·Centrelink sent letters to the respondent about her youth allowance payments on 3 March 2011, 8 July 2011, 13 October 2011, 21 November 2011 and 9 December 2011. Each of these letters informed the respondent that she must tell Centrelink about any events or changes to her circumstances within 14 days.·On 2 February 2012, the respondent notified Centrelink about her ‘end of course details’ and her intention to study.[12]·On 9 February 2012, Centrelink wrote to the respondent advising that her payment of youth allowance is based on her ‘studying full-time’ at TAFE in a course ending on 22 June 2012.[13] This letter again stated that the respondent must tell Centrelink within 14 days if she starts or stops being a part-time or full-time student, leaves ‘a training course before it ends’, or is absent for any period or changes her enrolment.[14]·Centrelink sent letters to the respondent about her youth allowance payments on 8 March 2012, 17 April 2012, 7 May 2012, 24 May 2012, 28 May 2012 and 13 June 2012. Each of these letters informed the respondent that she must tell Centrelink about any events or changes to her circumstances within 14 days.·On 16 March 2012, Centrelink commenced a review of the respondent’s enrolment as ‘an enrolment review data match’ noted that she had withdrawn from TAFE in semester 2, 2009.[15] ·From 23 June 2012, the respondent was paid newstart allowance.[7] Exhibit T-T9, page 57.[8] Exhibit T-T10, page 129.[9] Exhibit T-T10, page 130.[10] Exhibit T-T10, page 134.[11] Exhibit T-T10, page 135.[12] Exhibit T-T9, pages 65-66.[13] Exhibit T-T10, page 176.[14] Exhibit T-T10, page 177.[15] Exhibit T-T9, page 73.

Decision

Reasons for decision

For these reasons, I find that a global assessment of the respondent’s situation is ‘out of the usual and ordinary’ and her youth allowance debts should be waived in accordance with section 1237AAD of the Act.DECISION The decision under review is set aside and, in substitution, the Tribunal decides:·the applicant was not eligible to receive youth allowance in the periods from 19 February 2010 to 5 December 2010 and 7 February 2011 to 7 June 2012;·the applicant has youth allowance debts in the amount of $5,139.20 for the period from 19 February 2010 to 5 December 2010 and the amount of $10,202.63 for the period from 7 February 2011 to 7 June 2012; and·the applicant’s debts are waived due to special circumstances pursuant to section 1237AAD of the Social Security Act 1991 (Cth).

Ratio Decidendi

Legal Principle Established

The respondent did not dispute that during the periods from 19 February 2010 to 5 December 2010 and from 7 February 2011 to 7 June 2012 she was not undertaking a full-time study load in the courses she was enrolled in with TAFE. However, she said that she could not recall receiving letters from Centrelink about her youth allowance payments, and was not aware that her youth allowance was contingent on her undertaking full-time study.CONSIDERATION Prior to considering the issues for determination, I will briefly address the approach taken by the SSCSD in the decision made on 8 July 2020. With respect and for the following reasons, the approach of the SSCSD was not correct. In Wendy Halliday as the Administrator of the Estate of the Late Ashley Pauling; Secretary, Department of Social Services and, the Tribunal explained the process for reviewing administrative decisions under the AAT Act and, in particular, noted:Once the Tribunal is satisfied there is a reviewable decision and it has jurisdiction, it is not ordinarily concerned with what was decided by the original decision-maker or the SSCSD. The Tribunal conducts a fresh review on the merits, which means it generally reconsiders all of the evidence – which in most cases will include evidence that has become available since the date of the original decision – and takes submissions from the parties with a view to reaching the correct or preferable decision on the material before the Tribunal…A proper understanding of the Tribunal’s role in the decision-making process shows why it does not matter if the original decision (or the SSCSD decision) was wrong, or if it was affected by legal error, provided there was a reviewable decision within the meaning of the AAT Act. The Tribunal is often said to ‘step into the shoes of the original decision-maker’ upon review. In the course of the review process, it exercises all of the original decision-maker’s powers and is subject to the same legal constraints. When the Tribunal makes its decision, the decision takes effect as the decision of the original decision-maker: subsection 43(6) of the AAT Act.[19] [19] [2018] AATA 3865, paragraphs 22-23. I am satisfied that a decision in relation to the respondent and her eligibility for youth allowance was made by Centrelink (as the original decision-maker), and it is this decision that is to be reviewed by the Tribunal.Issue 1 – Was the respondent entitled to receive youth allowance during the periods from 19 February 2010 to 5 December 2010 and 7 February 2011 to 7 June 2012? Based on the evidence before the Tribunal, I am satisfied that:·the respondent was enrolled in part-time study at TAFE in 2010 and, as she was not undertaking full-time study, she was not eligible to receive youth allowance;·the respondent was enrolled in full-time study at TAFE in 2011 and, as she withdrew from the course mid-year and did not complete at least three-quarters of a full-time study load at any time in 2011, she was not eligible to receive youth allowance; and·the respondent was enrolled in full-time study at TAFE in semester 1 2012 but did not complete at least three-quarters of a full-time study load.