Burke and Secretary, Department of Education, Employment and Workplace Relations
[2010] AATA 436
•11 June 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 436
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0874
GENERAL ADMINISTRATIVE DIVISION ) Re TYRONE BURKE Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Ms Regina Perton, Member Date11 June 2010
PlaceMelbourne
Decision
The Tribunal affirms the decision under review.
(sgd) Regina Perton
Member
SOCIAL SECURITY – youth allowance – failure to inform Centrelink in a timely fashion of change of circumstances – overpayment – waiver of debt – whether administrative error – whether special circumstances exist – decision under review affirmed
Social Security Act 1991 ss 23(12), 541(1), 541(4), 543A(2), 1223(1), 1237A(1), 1237AAD
Social Security (Administration) Act 1999 s 94(1)
Ryde v Secretary, Department of Family and Community Services [2005] FCA 866
REASONS FOR DECISION
11 June 2010 Ms Regina Perton, Member 1. Youth allowance (YAL) is a payment available to young people who are undertaking full-time education, training or seeking work within a prescribed framework. YAL is administered by Centrelink on behalf of the Department of Education, Employment and Workplace Relations (DEEWR).
2. Tyrone Burke first received YAL in July 2007. At that time he was 16 years old and undertaking a pre-apprenticeship program. On completing that program on 16 December 2007, Mr Burke continued to receive YAL, having entered into a YAL Activity Agreement on 21 December 2007. The Activity Agreement required him to undertake job search contacts, maintain a jobseeker diary and report on his activities each fortnight. Mr Burke met his obligations for the next few weeks.
3. On 31 January 2008 Mr Burke enrolled as a full-time Year 12 student at Bundoora Secondary College. On 5 February 2008 Centrelink sent a notice to Mr Burke advising him that he had to inform Centrelink within 14 days if he stopped being a full-time student. Mr Burke quit his full-time studies in March 2008. He believes he notified Centrelink about stopping his studies, as he was required to do. Centrelink disagrees that he did so within the stipulated timelines.
4. Centrelink continued to pay YAL on the basis of Mr Burke being a full-time student until 7 August 2008. Having discovered that Mr Burke quit his full-time studies in March 2008, Centrelink determined that he was not eligible for such a payment from 13 March 2008 until 7 August 2008. Centrelink further determined that Mr Burke had been paid YAL to which he was not entitled. Accordingly, Centrelink raised a debt of $3,757.09. Mr Burke submits that he should not have to repay any moneys as the overpayment was due to Centrelink’s error in not amending his records when he had informed them in a timely fashion that he had ceased studying. Furthermore, he believes he would have been entitled to payment of YAL in any case as he was a jobseeker. Centrelink has no record of Mr Burke notifying it of quitting school until some five months later.
5. On 13 November 2008 an authorised review officer (ARO) from Centrelink affirmed the decision to raise the debt. On 12 February 2009 the Social Security Appeals Tribunal (SSAT) also affirmed the decision. On 2 March 2009 Mr Burke lodged an application with the Tribunal seeking review of the SSAT decision.
6. The issues to be considered by the Tribunal are:
·Does Mr Burke owe a debt to the Commonwealth?
·Should the debt be waived due to administrative error?
·Should the debt be waived due to special circumstances?
Does Mr Burke have a debt to the Commonwealth?
7. Section 543A(2) of the Social Security Act 1991 (the Act) sets out the circumstances in which a person who is less than 18 years of age can qualify for payment of YAL.
(2) ….. a person who satisfies paragraph (1)(a) or (b) but is not yet 18 years old is not taken under subsection (1) to have attained the minimum age for youth allowance unless the person:
(a)has completed the final year of secondary school, or an equivalent level of education; or
(b) is undertaking full‑time study; or
(c) has agreed to enter into a Youth Allowance activity agreement; or
(d) is a new apprentice.
8. Sections 541(1) and (4) of the Act sets out the consequences if a person receiving YAL quits his full-time study but does not let Centrelink know in a timely manner that he has done so.
(1)…..a person satisfies the activity test in respect of a period if:
(a) the person satisfies the Secretary that, throughout the period, the person is undertaking full‑time study (see section 541B); or
(b) subject to subsection (4), the person satisfies the Secretary that, throughout the period, the person is actively seeking, and willing to undertake, paid work in Australia (other than paid work that is unsuitable for the person); or
(c) throughout the period, the person complies with the terms of a Youth Allowance Activity Agreement applying to the person.
(4) For the purposes of paragraph (1)(b), a person who has:
(a) ceased undertaking full‑time study; and
(b) been given a notice under section 68 of the Administration Act that has the effect of requiring the person to inform the Department of that cessation; and
(c) refused or failed to comply with the notice in respect of that cessation;
cannot satisfy the Secretary that, at a particular time after the refusal or failure, the person is actively seeking, and willing to undertake, paid work in Australia unless, before that time, the person has informed the Department of that cessation or the Department has become aware of that cessation.
9. Centrelink’s records indicate that it did not become aware of Mr Burke ceasing his studies until several months after he did so. Centrelink sent notices to Mr Burke’s designated address on 5 February 2008, 7 March 2008, 11 March 2008 and 28 April 2008 in which his status was described as a full-time student. He was also reminded in those letters about the need to contact Centrelink within 14 days if he ceased study or if the information Centrelink held about him was incorrect.
10. On 18 July 2008 Centrelink undertook a data matching exercise between school enrolments and persons receiving YAL on the basis of being full-time students and discovered that Mr Burke was not enrolled in Semester 2 of 2008. Centrelink wrote to Mr Burke about his student status. On 8 August 2008 Mr Burke contacted Centrelink seeking YAL on the basis of being a jobseeker and he subsequently entered into a YAL Activity agreement. In October 2008 Mr Burke provided documentary evidence to Centrelink which indicated that he had quit school on 12 March 2008.
11. Section 94(1) of the Social Security (Administration) Act 1999 (the Administration Act) sets out the consequences for a person who is receiving a social security benefit and has been advised to notify Centrelink within a specified period of an event or change of circumstances. This includes the notices given to Mr Burke of the need to notify Centrelink within 14 days if he quit full-time studies. If a person fails to notify Centrelink of the event or change of circumstances, the social security payment is cancelled on the day on which the event took place. In Mr Burke’s case, this was the date he quit his studies.
12. Section 1223(1) of the Act allows the Commonwealth to raise a debt if a person is paid a social security payment to which he is not entitled.
13. On the basis of its records (which Mr Burke asserts are incomplete), Centrelink determined that Mr Burke was not eligible for YAL between 13 March 2008 and 7 August 2008 and therefore had been paid benefits to which he was not entitled. Centrelink raised a debt of $3,757.09 for that period. The debt was raised as Centrelink determined that Mr Burke did not meet the requirements of s 541 of the Act.
14. For reasons explained below, the Tribunal is satisfied that Mr Burke was paid YAL to which he was not entitled and that he owes a debt of $3,757.09 to the Commonwealth as a result.
Should the debt be waived due to administrative error?
15. Section 1237A(1) of the Act provides for waiver of a debt arising solely from administrative error:
Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.
Note: Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).
16. Mr Burke gave evidence that on the first day of the second term of 2008, namely 7 April 2008, he informed a Centrelink officer that he had ceased full-time studies. He said that he attended the local Centrelink office to do so. Ms Erwin, his mother, gave evidence that she had driven her son to the office. Mr Burke said that the officer had told him he would be sent a letter confirming that he had ceased studies. He said that he did not receive anything and assumed he was being paid as a jobseeker. Ms Erwin initially indicated that her son had quit his studies at the end of Term 1, which was two weeks before he notified Centrelink he was no longer a full-time student. However, the school record obtained in October 2008 indicated that Mr Burke had quit on 12 March 2008, which was a week before the end of Term 1.
17. Centrelink records do not accord with Mr Burke’s memory. There is no record of Mr Burke’s customer records being accessed on 7 April 2008. The Tribunal had before it evidence of Mr Burke’s personal records being accessed before and after 7 April 2008 but not on that date. The Tribunal also had evidence that Centrelink’s computer system creates a record each time an employee accesses a person’s personal records.
18. It may well be that Mr Burke did attend at the Centrelink office on 7 April 2008 and advised that he quit his studies. The Tribunal notes that his memory for dates and details was somewhat poor when giving oral evidence, apart from recalling that he attended on 7 April 2008. Nonetheless, it is possible that he attended and something went awry that day. It is possible that the wrong record was opened or that it was not opened at all. Nonetheless, even if something irregular occurred that is contrary to the usual practice at the Centrelink office, that is not enough for the Tribunal to waive the debt on the ground of administrative error.
19. Section 1237A(1) indicates that if the debtor contributed to the error, waiver under the section is not allowed. Centrelink wrote to Mr Burke on 5 February 2008, 7 March 2008 and 11 March 2008 noting that he was a full-time student and informing him of the requirement to tell the agency within 14 days if he stopped being a full-time student. On 28 April 2008 Centrelink again wrote to him noting that its records indicated that he was a full-time student and reminding him of the requirement to notify it within 14 days if he stopped studying. On 18 July 2008 Centrelink wrote to Mr Burke querying whether he was still a full-time student. Centrelink records indicate that Mr Burke did not advise the agency of his altered status until 8 August 2008 when his payments stopped. He subsequently entered into a YAL Activity Agreement which enabled him to be paid YAL on the basis of being a jobseeker (see s 543(2) above).
20. Centrelink sent letters to Mr Burke at his postal address. This was his grandmother’s home where he was living due to difficulties at his parents’ home. Mr Burke does not recall receiving any of the letters in which he was informed of the requirement to notify Centrelink if he stopped full-time studies. He said that mail often went missing. He attributed this to interception by his grandmother’s friend who had memory problems or due to locals removing mail from the letterbox. Ms Erwin could not recall her son receiving any letters but the Tribunal notes that they were not sent to her address but rather to Mr Burke’s grandmother’s home.
21. Section 23(12) of the Act provides that a YAL notice properly addressed to a person’s last known address and posted is deemed to have been given to the person, even if they did not actually receive or read the notice. The Tribunal is satisfied that Centrelink sent notices to Mr Burke, before and after he quit his studies, advising him of the requirement to notify the agency if he did so.
22. The Tribunal finds that the debt was not attributable solely to administrative error by the Commonwealth. The debt cannot be waived on this ground. Even if, as he claims, Mr Burke provided information in person to a Centrelink staff member at his local office that was not recorded, Centrelink nonetheless informed Mr Burke that he was obliged to advise it if he ceased studies or if any other information in the letter was wrong. Mr Burke did not notify Centrelink within 14 days of ceasing studies, that is by 26 March 2008. He also failed to contact Centrelink after a letter was sent to him on 28 April 2008 in which he was again advised of the obligation to advise Centrelink if he quit studies or if any of the information in the letter was wrong. That letter still recorded his status as a full-time student.
23. The Tribunal is satisfied that the payment of YAL to which Mr Burke was not entitled was not wholly due to administrative error on the part of Centrelink. Therefore, waiver of the debt due to administrative error is not available.
Should the debt be waived due to special circumstances?
24. Section 1237AAD of the Act provides for waiver of the debt 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.
25. The term special circumstances is not defined in the legislation. For the Tribunal to use its discretion to determine that Mr Burke’s situation constitutes special circumstances, it must be satisfied that there is something to make this case different from others who are in similar situations to Mr Burke. The term has been considered in many Federal Court and Tribunal cases. In Ryde v Secretary, Department of Family and Community Services [2005] FCA 866, Branson J held that the use of the term special circumstances in the legislation demonstrated an intention to proscribe waiver in ordinary cases. Branson J stated that the hardship or unfairness should be sufficient to justify departure from the general rule in the particular case.
26. The Tribunal received a report from a psychologist, Hugo Alarcon, dated 27 May 2009. In his report, Mr Alarcon pointed out that Mr Burke faced some difficulties. Ms Erwin anticipated that Mr Alarcon would be available to give evidence by telephone. The Tribunal attempted to contact Mr Alarcon a number of times during the hearing but he was not available on the telephone number given in the report. The Tribunal notes that Mr Alarcon first saw Mr Burke in January 2009, which was some 10 months after Mr Burke ceased his full-time studies.
27. The Tribunal invited Mr Burke and his mother to provide additional evidence to enable it to assess whether the special circumstances waiver might be appropriate. Ms Erwin declined the opportunity for her and her son to do so on the basis of their privacy. Ms Erwin stated that waiver on the ground of administrative error by Centrelink was the appropriate outcome.
28. As indicated earlier, Mr Burke was not entitled to payment of YAL during the relevant period as he did not meet the criteria for the payment. On the evidence before it, the Tribunal is not satisfied that the situation in which Mr Burke has found himself is vastly different from other social security recipients who have been paid a benefit to which they were not entitled due to a failure to notify Centrelink within the required timeframe of a change of status.
29. The Tribunal is not satisfied that the circumstances in this case constitute special circumstances (other than financial hardship alone). Hence, the waiver provisions of s 1237AAD of the Act do not apply.
30. The Tribunal finds that Mr Burke owes a debt to the Commonwealth for the payment of YAL between 13 March 2008 and 7 August 2008, to which he was not entitled. The debt is $3,757.09.
DECISION
31. The Tribunal affirms the decision under review.
I certify that the thirty one [31] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd) Mya Anumarlapudi
Clerk
Date of hearing: 16 April 2010
Date of decision: 11 June 2010
Advocate for applicant: Ms K ErwinSolicitor for respondent: Mr B Wee, DLA Phillips Fox
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