Box and Department of Education, Training and Youth Affairs

[2000] AATA 515

DECISION AND REASONS FOR DECISION [2000] AATA 515

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V1999/1089

GENERAL ADMINISTRATIVE DIVISION          )          
           Re      LORRAINE MARGARET BOX     
  Applicant
           And    SECRETARY, DEPARTMENT OF EDUCATION, TRAINING AND YOUTH AFFAIRS           
  Respondent

DECISION

Tribunal       Mr B. H. Pascoe, Senior Member

Date27 June 2000

PlaceMelbourne

Decision      The decision under review is affirmed.   

.......(Sgd) B. H. Pascoe.........
  Senior Member
CATCHWORDS
AUSTUDY – overpayment – actual income higher than estimates – whether debt – whether debt recoverable
Student and Youth Assistance Act 1973
AUSTUDY Regulations

REASONS FOR DECISION

27 June 2000  Mr B. H. Pascoe, Senior Member

1. This is an application to review a decision of the Social Security Appeals Tribunal ("the SSAT") that there was a recoverable debt for overpayment of AUSTUDY owing by the applicant in respect of the period 1 January 1997 to 30 June 1998.

2. Mrs Box was in receipt of AUSTUDY during 1996, 1997 and 1998.  Debts were raised on the basis that her personal income during the relevant period was greater than the estimates she had provided previously and on which her entitlements to AUSTUDY had been based.  Mrs Box sought review of the decisions to raise the debts and, on 2 June 1999, an authorised review officer varied the amount of the debts and determined that she owed $2,937.13 in respect of overpayments in 1996, $2,687.25 in respect of 1997 and $1,646.40 in respect of the period 1 January to 30 June 1998.  Further debts were raised in respect of the period after 1 July 1998 but these had not been considered by a review officer and were not before the SSAT or this Tribunal.  In its decision, the SSAT set aside the decision to raise and recover the debt in respect of 1996 and decided that no debt was owed.  The decision in relation to 1997 was remitted back to the respondent for reconsideration and recalculation with the entitlement for the first half of that year to be based on actual income for the six months to 30 June 1997.  The decision in respect of the six months to 30 June 1998 was affirmed by the SSAT.

3. At the hearing, Mrs Box was self-represented and appeared by telephone.  The respondent was represented by Mr R. Frazzetto of the Australian Government Solicitor's office.  The first hearing was held on 23 February 2000.  At that time, Mrs Box was relying on recalculations of the debt provided to her in January 2000 by the representative of the respondent.  However, at the hearing a new set of calculations was handed up by the respondent's representative showing a significantly higher debt than the January figure.  Mrs Box had not been provided with a copy of the new calculations and was in no position to make any submissions or comment about them.  After adjourning the hearing, the Tribunal reviewed these new calculations and forwarded them to Mrs Box.  Given the need for both parties to consider their position and the impending expiry of the term of appointment of the presiding member, it was determined to list the matter for a re-hearing at a future date.  The re-hearing was held on 7 June 2000.

4. At the re-hearing, Mrs Box was again self-represented and appeared by telephone with the respondent again represented by Mr Frazzetto.  A submission relating to the calculation of the entitlement to AUSTUDY for the year ended 31 December 1997 had been provided by the respondent to the Tribunal and Mrs Box prior to the hearing.  No submission was provided by Mrs Box prior to the hearing.

5. The relevant findings of fact by the SSAT were set out in paragraphs 23 to 29 of their decision as follows:

   "23.Mrs Box claimed AUSTUDY for 1997.  In her application form lodged on 18 February 1997 she estimated income from July to December 1996 as $8,200 and from January to June 1997 as $5,000.

   24.She also estimated July to December 1997 income would be $5,000 and stated she was unsure what the January to June 1998 income would be.

   25.During 1997 Mrs Box was paid a grant gross figure of $3,649.81.

   26.Mrs Box claimed AUSTUDY for 1998.  In her application form lodged on 30 December 1997 she estimated that her income from July 1997 to December 1997 was $5,000 and from January to June 1998 $1,000.  She did not know what her income would be after that date.

   27.On 21 May 1998 she revised her estimate of her income from January to June 1998 to $7,000.  As a result of this advice her AUSTUDY payments were immediately reduced.

   28.She was paid a grant gross figure of $3,449.80 for the period 1 January 1998 to 30 June 1998.

   29.Mrs Box's taxable income, excluding AUSTUDY, in the 1997/87 [sic] tax year was $13,933."

6. At the hearing, Mrs Box said that she had relied on advice from Centrelink and understood that where repayments of debt were due, such amounts could be deducted from income.  She believed, therefore, that her actual income was not significantly different from her previously estimated income.

7. For the respondent, it was submitted that the income on which entitlement was calculated excluded AUSTUDY payments in accordance with the Regulations so that any receipt or repayment of AUSTUDY did not affect the calculations of income on which entitlements are based.  It was said that the basis of AUSTUDY was to provide for payments calculated according to estimates of income with a retrospective adjustment and reassessment when actual income for the relevant period was known.

8. There was no dispute on the facts as found by the SSAT and a study of the documents provided by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 provided no reason to disagree with any of those facts.  The major finding of the SSAT was that, as Mrs Box had no entitlement to AUSTUDY in 1996, the actual income in the period 1 January 1997 to 30 June 1997 was to be used in calculating her entitlement for that period.  For the second half of 1997 and the first part of 1998 the actual income for the financial year ended 30 June 1998 was to be used to calculate her entitlement in each period.

9. In recalculating entitlements the confusion between several sets of figures given to Mrs Box arose partly from an error by the respondent in initially showing the debt relevant to the period 1 July 1997 to 31 December 1997 as one to be waived and partly from variation in the method of dealing with the amount of her entitlement traded in for the financial supplement under section 12G of the Student and Youth Assistance Act 1973.

10. Having reviewed all the material, the Tribunal is satisfied that the correct calculations of the entitlements over the period from 1 January 1997 to 30 June 1998 are as follows:

Period 1 January 1997 – 30 June 1997

Taxable Income for period  3,997.23
Maximum allowable income

6,000  x       181  2,975.34
  365
  Excess  1,021.89
           ÷ 2  510.94
Maximum Entitlement  7,581.57
Less traded for supplement  3,312.93
  4,268.64
4,268.64  x      181

365  2,116.77
less excess income  510.94
  1,605.83
less payment within period  1,335.73
Underpayment for period  270.10

Period 1 July 1997 – 31 December 1997

Taxable Income year ended 30 June 1998  13,933.00
Attributable to period                   13,933  x  184       7,023.76
  365
Maximum allowable income

6,000  x       184  3,024.66
  365
  Excess  3,999.10
  ÷ 2  1,999.55
Maximum entitlement  7,581.57
less traded for supplement  3,312.93
  4,268.64
4,268.64  x      184  2,151.86
  365
less excess income  1,999.55
  152.31
less payment within period  2,314.06
Overpayment for period  2,161.75

Period 1 January 1998 – 30 June 1998

Taxable Income – year ended 30 June 1998  13,933.00
Attributable to period  13,933  x  181

365  6,909.24

Maximum allowable income                
6,000  x       181  2,975.34

365
  Excess  3,933.90
  ÷ 2  1,966.95
Maximum entitlement  7,602.95
Attributable to period  181

365  3,770.23
less excess income  1,966.95
  1,803.28
Payment in period 1 January to 3 July 1998  3,512.17

less entitlement     1 July – 3 July 1998

7,602.95  x    3    62.49  3,449.68

365
Overpayment for period  1,646.40

Total for period 1 January 1997 to 30 June 1998

1 January 1997 – 30 June 1997                  Underpayment  270.10
1 July 1997 – 31 December 1997               Overpayment  2,161.75
1 January 1998 – 30 June 1998                  Overpayment  1,646.40
Net overpayment  3,538.05

1. The Tribunal is satisfied that the income tests have been properly applied in respect of entitlement to AUSTUDY over this relevant period and that the net overpayment to 30 June 1998 is a recoverable debt.  The Tribunal is satisfied, also, that the respondent properly took into account the information provided by Mrs Box in calculating the payments made to her.  There was no administrative error in the payments made to her and no grounds on which the debt could be waived.

2. If follows that the decision under review should be affirmed.

   I certify that the twelve (12) preceding paragraphs are a true copy of the reasons for the decision herein of

   Mr B. H. Pascoe, Senior Member

   Signed:         .....................................................................................
     Personal Assistant

   Date/s of Hearing  23 February and 7 June 2000
   Date of Decision  27 June 2000
   Solicitor for the Applicant         Applicant was self-represented
   Solicitor for the Respondent    Mr R. Frazzetto, AGS