Bronson and Secretary, Department of Social Services (Social security)

Case •

[2025] ARTA 654

•

12 February 2025

Bronson and Secretary, Department of Social Services (Social security) [2025] ARTA 654 (12 February 2025)

Applicant:  Mrs Bronson

Respondent:  Secretary, Department of Social Services

Chief Executive Centrelink

Tribunal Number:   2024/S192006

Tribunal:Member A Cichy

Place:Perth

Date:12 February 2025

Decision:The Tribunal sets aside the decision under review and substitutes its decision that there is an Assistance for Isolated Children Scheme debt of $3,251.95 for the period 5 February 2024 to 30 September 2024 but that the debt is waived under section 43F of the Student Assistance Act 1991.

Statement made on 12 February 2025 at 2:01pm

CATCHWORDS

SOCIAL SECURITY – Assistance for Isolated Children Scheme – overpayment – pre-university study program – no enrolment in an approved course – no false statement or representation – care and support required for special needs – shortfall in NDIS funding – debt waived – decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 201(1A) of the Social Security (Administration) Act 1999.

Statement of Reasons

BACKGROUND

  1. This review is about whether Mrs Bronson owes a debt in the amount of $3,251.95 for payments made to her under the Assistance for Isolated Children Scheme (AIC) in the period 5 February 2024 to 30 September 2024.

  2. On 6 September 2024, Services Australia (Centrelink) decided that Mrs Bronson had been ineligible for AIC payments from 5 February 2024 because her daughter, [Daughter A], had ceased to be registered for home schooling from that date.

  3. Mrs Bronson requested an internal review of the decision. On 21 October 2024, an authorised review officer affirmed the decision.

  4. On 11 November 2024, Mrs Bronson lodged an application with the Administrative Review Tribunal for an independent review of the decision.

  5. On 7 February 2025, the Tribunal conducted a hearing at which Mrs Bronson gave evidence by conference telephone. The Tribunal had before it documents provided by the Department (folios 1 to 97), which had been copied to Mrs Bronson before the hearing.

LEGISLATION AND ISSUES

  1. The statutory provisions relevant to this review are found in the Student Assistance Act 1991 (the Act), the Student Assistance (Education Institutions and Courses) Determination 2019 (the 2019 Determination) and the Student Assistance Regulations 2021 (the Regulations).

  2. The Assistance for Isolated Children Scheme Guidelines (the Guidelines) describe the policy and procedures for the AIC scheme. The Tribunal has had regard to the guidelines in force as at 1 January 2024. Although the Tribunal is not bound by policy, the Full Federal Court in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 held that the Tribunal should take into account relevant government policy that is not inconsistent with the provisions or objects of the legislation.

  3. The issues which arise in this case are:

    ·      Did Mrs Bronson receive payments for AIC in excess of her entitlement and thereby incur a debt to the Commonwealth? And, if so,

    ·      Are there any reasons why the debt should not be repaid?

Did Mrs Bronson receive payments for AIC in excess of her entitlement?

  1. The AIC scheme is a ‘current special education assistance scheme’ as defined in section 3 of the Act. Decisions in relation to the recovery of amounts paid under this scheme are reviewable pursuant to paragraph 302(1)(c) of the Act (and may be reviewed by the Administrative Review Tribunal pursuant to section 310 of the Act).

  2. The objectives of the AIC scheme (as stated at Item 1.2 of the Guidelines) are ‘to assist Australian children without reasonable daily access to an appropriate state school’. The scheme provides financial assistance in the form of allowances to alleviate costs in a range of circumstances, including, as relevant here, when the student has special needs. The Guidelines (at 3.1) provide that for a student to be eligible for AIC, that student must (among other things) be undertaking approved studies. At 3.4, the Guidelines set out that approved studies consist of a full-time study load, offered by an approved institution, in an approved course, at an approved level of study.

  3. Mrs Bronson completed and signed a questionnaire regarding her access to AIC on 20 October 2023. In this questionnaire, she indicated that her daughter, [Daughter A], would be home schooled for Year 11 through Euka (NSW Home Schooling), with classes commencing on 31 January 2024.

  4. It appears that [Daughter A] was subsequently accepted into the [University 1] Study Link Program [in] February 2024 (‘the course’)[1] and a subsequent enrolment check performed by Centrelink indicated that she had not been enrolled in home schooling from 4 February 2024. Mrs Bronson confirmed this to Centrelink on 6 September 2024.[2]

    [1] Folio 17

    [2] Folio 72

  5. The enrolment details for the course indicate that the subjects are not credit-bearing and therefore do not count towards a diploma or degree.[3] The courses are self-paced, to create a ‘non pressured learning environment’ within the Study Link Term Dates.[4] The official name of the course is the ‘[University 1] Supplementary Course’.

    [3] Folio 18

    [4] Folio 18

  6. The Regulations stipulate that an ‘approved course’ has the same meaning as in the Guidelines.

  7. The Guidelines define an approved course (at 3.4.3) as follows:

    An approved course is either:

    (a) a full-time primary or secondary level course (see 3.4.4) involving daily attendance at an approved institution, that is recognised under the Student Assistance (Education Institutions and Courses) Determination 2019 made under section 3(1) and 5D(1) of the Act;
    (b) a full-time primary or secondary level distance education course offered by an approved institution of type 3.4.2(a), 3.4.2(b), 3.4.2(d) or 3.4.2(e), provided that the course is accepted by the state or territory education authority as a satisfactory alternative to full-time daily attendance at school;
    (c) a full-time primary or secondary level course of home education or schooling that has been approved formally by the state or territory education authority as being a satisfactory alternative to a state or territory provided government curriculum;
    (d) any other full-time secondary course at an approved institution, that is recognised under the Student Assistance (Education Institutions and Courses) Determination 2019 made by the relevant Minister under section 3(1) and 5D(1) of the Act;
    (e) a full-time tertiary course offered by an approved institution (see 3.4.2(c) or (f)), that is recognised under Student Assistance (Education Institutions and Courses) Determination 2019 made by the relevant Minister under section 3(1) and 5D(1) of the Act; or

    (f) in the case of a student at an approved institution specified in 3.4.2(d) or (e), any form of approved full-time study below tertiary level (including ungraded studies).

  8. The course cannot meet the definition of a secondary level course on the basis of the definition in section 10 of the 2019 Determination that it does not meet the criteria specified in Column 1 of the table in Schedule 2 to the 2019 Determination, and does not lead to an accredited secondary course qualification.

  9. For the course to meet the definition of a tertiary course, it would need to need to fall within the range of courses specified in Column 1 of the table in Schedule 2 to the 2019 Determination. Having considered the range of courses in Column 1 of the table in Schedule 2 to the 2019 determination, the Tribunal is satisfied that the course does not meet the definition of a tertiary course for the purposes of the 2019 Determination.

  10. The requirements of Item 3.4.2(f) of the Guidelines, although providing for ungraded studies, also require that the student be undertaking those studies on a full-time basis. The enrolment information for the course already referred to above in paragraph 13 indicates that the course is self-paced. The Tribunal also observes that [Daughter A] was enrolled in two subjects, Introductory Chemistry, and Essay Writing 1 – Style, in Term 1 2024,[5] and therefore it is not satisfied that the course was undertaken on a full‑time basis. On the basis that the course was not undertaken on a full-time basis, the requirements of Item 3.4.2(f) of the Guidelines are not met.

    [5] Folio 18

  11. Since Mrs Bronson’s daughter, [Daughter A], was not enrolled in an approved course, it follows that she was not undertaking approved studies and was therefore not eligible for AIC. Any payment received by Mrs Bronson on the basis that [Daughter A] was undertaking approved study after she ceased to be enrolled in home schooling (that is, after 4 February 2024) was therefore an overpayment. Under section 38 of the Act, a special educational assistance scheme overpayment is a debt.

  12. The Tribunal has found that all payments made for Mrs Bronson under the AIC scheme after 5 February 2024 were overpayments. Section 39 of the Act provides that an overpaid amount is a debt owed by a person to the Commonwealth. The Tribunal therefore finds that Mrs Bronson owes a debt to the Commonwealth of $3,251.95 for the period 5 February 2024 to 30 September 2024.

Are there reasons why the debt should not be repaid?

  1. French J described the legislative regime in relation to debts incurred by individuals in connection with social security payments in Secretary, Department of Social Security v Hales [1998] FCA 219 as follows:

    From time to time in the administration of social security benefits overpayments occur. Sometimes these are the result of innocent non-compliance with the requirements of the law which can be affected by the stress associated with the circumstances that led to the receipt of benefits in the first place. The taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to receive will be recovered, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the persons concerned. However, the confining of a recovery regime by rigid rules, particularly in this area of the law, is likely to be productive of unfair or harsh outcomes in some of the great variety of fact situations that can arise. There are provisions in the Act which recognise that reality. They relate to the writing off and the waiver of debts otherwise due to the Commonwealth.

  2. Although French J was referring to overpayments in the context of the Social Security Act 1991, the principles are equally applicable to the legislation under consideration in this matter. While, in the ordinary course, the taxpayer is entitled to expect that those who have received a social security benefit to which they were not entitled will repay the benefit (see Secretary, Department of Social Security and Hales [1998] 219 FCA), there are provisions contained in the Act to prevent those outcomes that would be unfair or harsh. Those provisions (insofar as they are relevant to the current matter) are contained in sections 43, 43B and 43F of the Act respectively.

Can all or part of the debt be written off pursuant to section 43 of the Act?

  1. Section 43 of the Act states as follows:

    Secretary may write off debt
    Writing off debt

    (1)  The Secretary may, on behalf of the Commonwealth, write off a debt.
    Class of debts
     (2)  For the purposes of subsection (1), the Secretary may write off debts that are included in a class of debts determined by the Minister by notice published in the Gazette .
    When decision takes effect
     (3)  A decision made under subsection (1) takes effect:
     (a)  if a day is stated in the decision as the day on which the decision takes effect--on the day so stated (whether that day is before, on or after the day on which the decision is made); or
     (b)  if a day is not so stated in the decision--on the day on which the decision is made.

    Note:  If the Secretary writes off a debt, this means an administrative decision has been made that, in the present circumstances, there is no point in trying to recover the debt. In law, however, this debt still exists and may later be pursued.

  2. The Tribunal notes that the purpose of a write-off of a debt, as stated in section 43, is to enact an administrative decision that within the present circumstances, there is no point in trying to recover a debt.

  3. The Tribunal asked Mrs Bronson for her response to a hypothetical situation that would see the debt written off for one to two years. Mrs Bronson said that while she has remained hopeful that her (and her children’s) situation will improve such that she can return to work, her experience of the past two to three years was that their care needs had increased, rather than decreased. She was concerned that the situation might either not improve or become worse. The Tribunal therefore determined that a write‑off pursuant to section 43 of the Act was not appropriate in these circumstances.

Can all or part of the debt be waived pursuant to section 43B of the Act?

  1. Section 43B of the Act requires any debt caused by sole administrative error of the Commonwealth (provided that other requirements are also met) to be waived. The Tribunal is satisfied that the debt in this matter arose when Centrelink confirmed with Mrs Bronson that her daughter was no longer enrolled in home schooling on 6 September 2024 (and had not been enrolled in home schooling after 4 February 2024). The debt therefore arose because Mrs Bronson had failed to report the change in her daughter’s circumstances to Centrelink rather than as a consequence of administrative error by the Commonwealth. The debt therefore cannot be waived pursuant to section 43B of the Act.

Can all or part of the debt be waived pursuant to section 43F of the Act?

  1. Section 43F of the Act states as follows:

    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; 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.

  1. Before considering whether special circumstances exist in this case, the Tribunal must be satisfied that the requirements of paragraph 46F(a) are met – that is, that the debt did not arise because Mrs Bronson knowingly made a false statement or representation, or otherwise knowingly failed to comply with a relevant provision of the Act.

  2. The Tribunal asked Mrs Bronson why she had not informed Centrelink earlier of [Daughter A’s] change of enrolment from home schooling to [University 1’s] Study Link Program. Mrs Bronson explained she was told by a NSW Education Standards Authority (NESA) staff member that her daughter could receive a completion certificate for years 11 and 12, and then they recommended a range of other providers to Mrs Bronson for [Daughter A’s] continued schooling. Mrs Bronson, assuming that [Daughter A’s] registration for home schooling had been continued, then assembled an education program for her daughter using courses from [University 1] [subjects specified].[6]

    [6] Folio A5

  3. The Tribunal is satisfied, on the basis of Mrs Bronson’s evidence, that she did not knowingly make a false statement to Centrelink or knowingly fail to comply with a relevant provision of the Act.

  4. The term ‘special circumstances’ is not defined in the Act (although paragraph 43F(b) limits its application to circumstances beyond financial hardship alone). Both the Administrative Appeals Tribunal (as it then was) and the Federal Court, however, have considered the term and its application on a number of occasions. In Groth v Secretary, Department of Social Security [1995] FCA 989, the Court held that cases to which special circumstances applied should have something to distinguish them from the usual run of cases; in Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25, however, the Court held that it was not the intention of Parliament to confine the exercise of discretion to those cases that were ‘exceptional’; in its consideration of the term, the Full Federal Court in Dranichnikov v Centrelink [2003] FCAFC 133 said (at [66]) that ‘There will be a requirement that the circumstances are such that takes the case out of the ordinary.’

  5. In Davy and Secretary DEWR [2007] AATA 1114, Deputy President Forgie considered the connection between the terms ‘special circumstances’ and ‘that make it desirable to waive’ (at [80]), noting that the consideration of a person’s circumstances must be weighed against a consideration of the general administration of the social security system.

  6. The Tribunal must therefore consider both whether the circumstances of this case are special and, if so, whether these special circumstances also make it desirable to waive the debt.

  7. Mrs Bronson’s oral evidence to the Tribunal was as follows:

    (a)    Both of Mrs Bronson’s children have autism and other related diagnoses. Mrs Bronson is their full-time carer and has needed to home school both children because both were not coping well in school environments (frequent meltdowns, social shutdowns and inability to focus on studies) and the schools lacked resources to support their needs.

    (b)    The amount of care and support the children have required as they transition to adulthood, Mrs Bronson said, has increased significantly. Mrs Bronson told the Tribunal that her children require significant daily prompting, daily management of their therapies and that they have emotional meltdowns unpredictably several times per week.

    (c)    Mrs Bronson is experiencing significant burnout and has an established diagnosis of PTSD and depression, which she says has been exacerbated as a consequence of the burden of being the primary carer for her children.

    (d)    Mrs Bronson said that she continues to have ‘battles’ with NDIS to ensure that the level of funding and support for her and her children is adequate.

    (e)    On the same day as Mrs Bronson received the decision from Centrelink, she was informed by the NDIS that she would experience a significant cut in funding for her children. Although Mrs Bronson receives carer payment from Centrelink, she says that this is now used to fill the gaps created by a shortfall in the NDIS funding she receives for her children.

    (f)     The Centrelink debt, Mrs Bronson said, was an additional stress on top of the loss of NDIS funding (psychology for both children, amounting to an additional $10,000 in out-of-pocket expenses to Mrs Bronson annually). Mrs Bronson has required psychological support on a fortnightly basis (which far exceeds the 10 sessions that are covered by Medicare annually), and needed to appeal the decisions of the NDIS. The Tribunal asked Mrs Bronson whether the psychological support she mentioned was separate to the $9,000 of psychiatric support she specified in her Statement of Financial Circumstances, which Mrs Bronson confirmed was correct.

    (g)    Worsening depression and suicidal feelings led Mrs Bronson to increase her psychological supports from monthly to fortnightly in September 2024.

    (h)    If Mrs Bronson was required to repay the Centrelink debt, she said that she would be forced to make cuts in other areas. She said that she would make the cuts in areas affecting her first, and then in areas affecting the children. She said the first area she would be likely to make cuts in would be her psychological supports.

    (i)   Mrs Bronson is not assisted by her husband in caring for the children as he is engaged in full-time employment from Monday to Saturday, leaving home at 6.30 am and returning home at 7.00 pm Monday to Friday, and 7.00 am to 2.00 pm on Saturday.

    (j)   Mrs Bronson has no family in Australia and is not in contact with her husband’s family in Australia. The high care needs of her children mean that she has been socially isolated, although she does have some friends online.

  1. On Mrs Bronson’s evidence and submissions, the Tribunal is satisfied that the circumstances of this case are so uncommon and unusual as to meet the definition of special circumstances and that the circumstances extend beyond mere financial hardship to encompass matters including significant risks to the health of both Mrs Bronson and her children. The Tribunal is also satisfied that, in these circumstances, the special circumstances of the case make it desirable to waive the debt; while most people are required to make decisions about relative priorities for their daily spending, it would seem harsh and unjust to expect a person to be required to make trade‑offs between their own medical care and that of their disabled children in order to service a debt to the Commonwealth. The Tribunal therefore exercises its discretion pursuant to section 43F to waive the debt, having already determined (at paragraph 25) that a waiver of the debt is not appropriate in the circumstances.

DECISION

The Tribunal sets aside the decision under review and substitutes its decision that there is an Assistance for Isolated Children Scheme debt of $3,251.95 for the period 5 February 2024 to 30 September 2024 but that the debt is waived under section 43F of the Student Assistance Act 1991.

Date of hearing: Friday 7 February 2025

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