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

[2011] AATA 123

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 123

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/3269

GENERAL ADMINISTRATIVE DIVISION		)
Re		Amanbek Bobekov

Applicant

And Secretary, Department of Education, Employment and Workplace Relations

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date24 February 2011

PlaceSydney

Decision The decision under review is affirmed.

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

Ms N Bell, Senior Member

CATCHWORDS – Social Security – Youth Allowance – overpayments – study load – full-time study – administrative error – special circumstances – carer – ill mother and brother

Social Security Act 1991

REASONS FOR DECISION

Ms N Bell, Senior Member

1.      There is no dispute that Mr Bobekov was overpaid Youth Allowance of $2269.31 for the period 7 February 2005 to 3 April 2005 and $3492.61 for the period 18 July 2005 to 4 December 2005.

2.      Mr Bobekov had applied for Youth Allowance as a full-time student at Granville TAFE, undertaking a Diploma of Business Banking and Finance. However, he had withdrawn from all study units in semester one of 2005 after having done only 60 hours study in the semester. In semester two, his study load was only 162 hours. This does not amount to the full-time study necessary for eligibility for the Youth Allowance payment he received. Consequently, a debt was raised and has been recovered.

3.      The issue for me to consider is whether recovery of his debt should be waived.

4. In Mr Bobekov’s circumstances there are two bases on which waiver could be entertained. The first is administrative error under section 1237A of the Social Security Act 1991. However no administrative error has been identified. The second basis for waiver is the existence of special circumstances that may make it desirable to waive the debt under section 1237AAD of the Act which provides:

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.

5.      Mr Bobekov raised a number of circumstances, mainly concerning his mother and brother and his responsibility as a carer to both of them.

6.      Mr Bobekov said that his brother was assaulted and hospitalised in early 2005. I note a certificate from the Royal Prince Alfred Hospital that refers to his brother's admission from 17 to 23 November 2004 in the neuro-ICU and then from 23 to 30 November 2004 in what appears to be a general ward. Mr Bobekov said that many demands were placed on him by his brother’s injury and illness. However, I note his evidence that, after rehabilitation, his brother returned to Newtown to live on his own. I also note that Mr Bobekov's brother was in receipt of a Newstart Allowance in 2005 and was in paid employment for part of the year. Nevertheless, Mr Bobekov said that from February to April 2005 he was mainly looking after his mother but also caring for his brother to some extent as well.

7.      Mr Bobekov also spoke about his brother's mental health and provided a certificate from Westmead Hospital concerning his brother's admission for chronic schizophrenia in 2007.

8.      Mr Bobekov said that his mother was injured in 2003 and has required his care and assistance since that time. He said he has had to be with her “constantly”, take her to medical appointments and cook and clean for her. I note the certificate of the his mother's general practitioner, Dr Philip Vuong, to the effect that Mr Bobekov has looked after his mother “with both physical and emotional conditions" on most days of the week since 2003.

9.      Mr Bobekov said that he travelled to Kurdistan with his mother in May 2005 for one month. He said that at that time his brother was out of rehabilitation and doing well and for that reason he felt free to travel overseas. Mr Bobekov said that he told Centrelink that he stopped studying at that point. However I note there is no record of this contact in Centrelink’s file.

10.     Mr Bobekov was of the strong opinion that Centrelink ought to have realised that his circumstances rendered him eligible for a carer payment and should have advised him of this. He said that he visited the Centrelink office many times in 2005 and had asked for an appointment with the social worker. However, again, there is no record of such a contact.

11.     Mr Bobekov said that it was very difficult in 2005 to cope with his study and with caring for his mother and brother as well. He said that he had handed in a number of medical certificates to TAFE and thought that TAFE would pass them on to Centrelink. He said he thought TAFE and Centrelink had a direct link and would share information. He considered himself to be a victim of “horrible customer service".

12.     

There is no record of Mr Bobekov having advised Centrelink that he was not undertaking a full time study load and no record of him having advised of his circumstances as carer of his brother or of his mother at this time. He was sent a number of notification advice letters by Centrelink, telling him that he must advise Centrelink if he ceases to undertake full time study. Two of these were in January and February 2005, the beginning of the academic year. Mr Bobokev did not advise Centrelink when he ceased to undertake full time study. On 13 September 2005,

Mr Bobekov lodged a Study Details form that advised he was undertaking full time study. He failed to comply with the requirement to give notice of this change.

13.     There were a number of inconsistencies in Mr Bobekov’s evidence. He said he told Centrelink he had ceased study in May 2005, but there is no record of him having done that. He initially presented that he had cared for his brother in 2005 intensively but under cross examination he gave evidence that his brother did not live with him and Centrelink records show that his brother was receiving Newstart Allowance and doing some paid work. He was well enough for Mr Bobekov to depart from Australia for one month. In the hearing before this Tribunal, Mr Bobekov made much of his responsibities in 2005 as carer for his mother. However, before the Social Security Appeals Tribunal, he appears to have concentrated more on his responsibilities in 2005 in relation to his brother and little mention was made of his mother.

14.     Even if Mr Bobekov had given the advice he was required to give to Centrelink, it is difficult to determine, on his evidence, the extent of his responsibilities in 2005 for his brother and mother. I do not accept that in 2005 he was responsible for or provided a great deal of care for his brother. I accept that he provided some care for his mother, but I also note his evidence that when he and his mother returned from Kurdistan in May or June 2005, Mr Bobekov’s younger brother returned with them. I do not know what role this brother played in relation to the care of his mother but I note the SSAT’s comment that, in relation to another appeal, there was medical evidence to the effect that the younger brother was the usual carer. It is difficult to escape the conclusion that Mr Bobekov embellished significantly in relation to his responsibilities as a carer.

15.     I also note that the debt has been paid. It is not causing Mr Bobekov any current financial difficulty and he gave no evidence of such difficulty.

16.     While I accept that it may amount to exceptional or unusual, and therefore special, circumstances for a young man to have responsibility for the care of his injured and mentally ill mother and brother, I am not satisfied that Mr Bobekov shouldered the burden of care that he described. This is so notwithstanding the general practitioner’s certificate which simply says he has “looked after” his mother. The certificate provides no detail of the extent of the care given and does not mention Mr Bobekov’s younger brother who may have also played a role in the care of his mother. In any event, I do know know the basis of the general practitioner’s opinion and whether he has observed the level of care given or is reporting solely on the basis of a history given by Mr Bobekov.

17.     Even taking Mr Bobekov’s evidence at its highest, I do not consider that a failure to alert him to the potential for claiming a carer allowance amounts to special circumstances. This is particularly so when there is no record of him having advised Centrelink of those circumstances.

18.     For these reasons I cannot be satisfied that Mr Bobekov’s circumstances were so special as to make it desireable to waive recovery of the debt.

decision

19.     The Tribunal affirms the decision under review.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

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

Dates of Hearing  10 January 2011
Date of Decision  24 February 2011
Representative for the Applicant     Unrepresented 
Solicitor for the Respondent            Ms Radhika Prasad, Centrelink Legal Services