Campbell and Department of Education, Training and Youth Affairs
[2001] AATA 79
•7 February 2001
DECISION AND REASONS FOR DECISION [2001] AATA 79
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/463
GENERAL ADMINISTRATIVE DIVISION )
Re JOHN STUART CAMPBELL
Applicant
And SECRETARY, DEPARTMENT OF EDUCATION, TRAINING and YOUTH AFFAIRS
Respondent
DECISION
Tribunal Ms SM Bullock, Senior Member
Date 7 February 2001
PlacePort Macquarie
Decision The decision under review is set aside pursuant to subsection 43 (1)(c) of the Administrative Appeals Tribunal Act 1975. In substitution therefor, the Tribunal decides that the Applicant's AUSTUDY overpayment debts of $3,133.20 and $797.04 be written off.
....................[sgnd]...................
Ms SM Bullock
Senior Member
Catchwords AUSTUDY OVERPAYMENTS – debt – special circumstances
Legislation
Student and Youth Assistance Act 1973 ss 40, 287, 289, 290C
Student and Youth Assistance Amendment (Youth Training Allowance) Act No 2 1995 [No 155 of 1995]
Social Security Legislation Amendment (Budget and Other Measures) Act 1996 [No 84 of 1996]- Schedule 18
Social Security Legislation Amendment (Youth Allowance Consequential and Related Measures) Act 1998 [No 45 of 1998]- Schedule11
AUSTUDY Regulations 12E, 34, 36, 109 in force under the Student and Youth Assistance Act 1973
Authorities
Re L and Secretary, Department of Social Security (1995) 21 AAR 412
Lee v Secretary, Department of Social Security (1996) 68 FCR 491
Perks and Department of Family and Community Services [2000] AATA 671
REASONS FOR DECISION
SM BULLOCK, Senior Member
The Applicant, Mr John Campbell seeks review of a decision of the Social Security Appeals Tribunal ("the SSAT") dated 28 February 2000 (T2) which affirmed that the Applicant owes debts of $3133.20 being an amount of AUSTUDY Living Allowance received in 1995 to which he was not entitled and $797.04 for AUSTUDY Living Allowance received in 1996, to which he was also not entitled.
At the hearing before the Administrative Appeals Tribunal ("the Tribunal") Mr Campbell, represented himself. The Department of Education, Training and Youth Affairs ("the Department") was represented by Mr G Peek, Principal Solicitor with the Australian Government Solicitor's Office. No witnesses were called.
At the commencement of the hearing before this Tribunal, the Applicant conceded that he would not be disputing that he had also incurred a debt of $797.04, being an amount of AUSTUDY received in 1996, to which he was not entitled. Accordingly, this debt was not at issue at the hearing.
The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents" T1 – T46) in addition to the following exhibits:
Exhibit Description Date
T1-T46 Section 37 Documents Various
A1 Handwritten letter by Mr Campbell and Statutory Declaration signed by Mr Campbell 25 May 2000 19 June 2000
A2 Enrolment advice / invoice for Mr Campbell 8 May 1995
A3 Letter from Southern Cross University to Mr Campbell 16 February 1995
A4 Letter from Dr C Moran, Locum General Practitioner 5 December 2000
A5 Letter from Mr Campbell Received 31 January 2001
A6 Letter from Mr Campbell 28 January 2001
R1 Respondent's Statement of Facts and Contentions 22 November 2000
R2 Respondent's further submission 17 January 2001
Issues
Noting Mr Campbell's agreement at the hearing that the AUSTUDY overpayment for 1996 was a debt owed to the Commonwealth, the issues to be determined by the Tribunal are whether:
(a)Mr Campbell was overpaid AUSTUDY in 1995 and if so, is there an overpayment debt owed to the Commonwealth; and whether
(b)Any debts arising should be recovered, written off or waived under sections 287, 289 or 290C of the Student and Youth Assistance Act 1973.
Legislation
Although the AUSTUDY Scheme was repealed from 1 July 1998, the hearing before the Tribunal proceeded on the basis of the law as it was at the time of the primary decisions; namely 15 April 1996 and 13 August 1996.
In 1995, AUSTUDY Regulations made pursuant to the Student and Youth Assistant Act 1973 ("the Act") meant that Mr Campbell, in order to qualify for payment of AUSTUDY, had to be enrolled full-time (Sub-regulation 34(1)).
Sub-regulation 34(2) explained that full-time enrolment, for the purposes AUSTUDY, entailed that a student be enrolled in and undertake at least three quarters of the normal amount of full-time work for a period as set out in Regulation 35. Regulation 35 sets out that the normal amount of full-time work for a semester was four subjects. Thus, Mr Campbell incurred a debt in Semester 2 of 1995 because it is contended he was only enrolled in two subjects and was thus not a full-time student for the purposes of AUSTUDY.
Regulation 36 makes certain exceptions for a student studying a reduced workload (being two-thirds of the normal workload), however, it is not relevant to Mr Campbell's circumstances as he was only undertaking half the normal workload.
Taking into consideration that Mr Campbell was entitled to receive AUSTUDY in Semester 1 of 1995 and applying Regulation 12E, which states that where a student receives payments which are greater than what they were actually entitled to "an amount equal to the differences between the total amount paid and the amount that would have been properly payable… is taken to be a student assistance overpayment for the purposes of Part 6 of the Act", the Respondent accordingly contended that the amount of $1,896.97, which was properly paid out to Mr Campbell for Semester 1, is to be deducted from $5030.17, which is the total amount Mr Campbell was paid in 1995, leaving a debt of $3133.20 for 1995 (T25).
Sub-regulation 109(1)(iv) deals with a student's requirement to notify the Department of cessation of studies within seven days.
Section 40 of the Act deals with debts and states:
"40
(1)Where, whether before or after the commencement of this subsection, a person has been paid an amount that is a student assistance overpayment or a special educational assistance scheme overpayment, the amount of the overpayment (in this section called the "recoverable amount") is a debt owed by the person to the Commonwealth.
…"
Further, it is open to the Tribunal to determine whether, if there are overpayment debts, such debts should be written off or waived under sections 287, 289 and 290C of the Act as it stood prior to 1 July 1998.
As relevant section 287 of the Act provides:
"Writing off debt
287
(1)The Secretary may, on behalf of the Commonwealth, decide to write off a debt.
Class of debts
(2)The Secretary may, on behalf of the Commonwealth, decide to write off debts arising under or as a result of this part that are included in a class of debts determined by the Minister by notice published in the Gazette.
When a decision takes effect
(3) A decision made under subsection (1) or (2) takes effect:
(a)if no day is stated in the decision - on the day on which the decision is made: or
(b)if a day is stated in the decision - on day so stated (whether that days is before, after or on the day on which the decision is made).
Note: If the Secretary writes of a debt, this means an administrative decision has been made that, in the circumstances, there is no point in trying to recover the debt. In law, however, the debt still exists and may later be pursued.
…"
As relevant section 289 of the Act provides:
"Administrative Error
289(1)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 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).
…
Proportion of Debt(3)For the purposes of this section, a proportion of a debt may be 100% of the debt
…"
Section 290C of the Act as relevant provides:
"290C. 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; 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.
…"
Background
The following is provided by way of background and the facts contained within are not in dispute.
Mr Campbell applied for AUSTUDY for 1995, indicating that he would be studying full-time during the whole of 1995 (T3). Mr Campbell had enrolled in a Bachelor of Arts Degree at the Southern Cross University.
Based on the information contained in his application, Mr Campbell was assessed as eligible for AUSTUDY in 1995. Accordingly, he received the amount of $5,030.17 for the period 20 March to 31 December 1995 (T20, pp 98-105).
On 10 December 1995, a 'Tertiary Enrolment Check' was generated as part of a referral system set up between the University and the Department (T10). This advised that Mr Campbell was only enrolled in two subjects in Semester 2, 1995 and that the total workload for these subjects was 0.250, which is not considered a full-time workload. It recorded no enrolment for Mr Campbell in Semester 1, 1995.
On 15 April 1996 an overpayment was raised against Mr Campbell for $5030.17, in respect of all AUSTUDY he had received in 1995.
The amount of overpayment was reviewed internally at the instigation of Mr Campbell. Relevantly, on 27 January 1998, as a result of evidence provided by Mr Campbell that he had in fact completed full-time studies in Semester 1, 1995 - the amount of overpayment was reduced to $3133.20.
The fact of contention which remains between the Department and Mr Campbell is whether Mr Campbell was actually enrolled in three subjects for Semester 2, 1995. His enrolment record for that Semester shows that he was only enrolled in two subjects. Mr Campbell asserts that this is an administrative error made by the University; in his submission Mr Campbell noted that he was not responsible to notify AUSTUDY about errors made by the University.
In relation to the 1996 AUSTUDY overpayment, Mr Campbell applied for AUSTUDY in 1996 to continue his course (T9).
On 24 July 1996, Mr Campbell notified the Department that he would not continue studying in Semester 2 because of health problems (T15), but Mr Campbell had already been paid AUSTUDY past the completion of Semester 1, 1996.
On 12 August 1996, following reassessment of Mr Campbell's entitlement, a further overpayment was raised for the period 15 June to 16 August 1996 in the amount of $797.04.
On 28 February 2000, the SSAT decided to affirm the Department's decisions that AUSTUDY overpayment debts of $3,133.20 and $797.04 were recoverable and there were no special circumstances in Mr Campbell's case to waive recovery of either debt. The SSAT further found that "during the larger part of both debt periods, Mr Campbell knew he was not entitled to be paid AUSTUDY" (T2).
Evidence of Mr Campbell
Mr Campbell informed the Tribunal that in 1995, when he enrolled in a Bachelor of Arts Degree at the Southern Cross University (which had just opened its campus in Port Macquarie), he was intending to study full-time.
Mr Campbell stated he was returning to studies after many years and that the University therefore advised him to only take a minimum loading. Mr Campbell says he enrolled in three University subjects. He also stated that although this was a reduced loading, it was considered a full-time loading for the purpose of obtaining AUSTUDY.
In August of 1995, Mr Campbell discovered that he was actually only enrolled in two subjects and not three as he had previously thought. Mr Campbell stated that he was notified of this in a letter sent to him by the University, however, he no longer has that letter. Mr Campbell said that when he received the letter, he called and spoke to the relevant enrolment officers at the University who informed him that he could amend his enrolment by filling out a new enrolment form. Mr Campbell said that it was agreed that these forms would be sent out to him.
Mr Campbell stated that he firmly believed he was enrolled in a third subject and he attended lectures and submitted assignments for this subject. However, Mr Campbell could not recall the name of the third subject.
In Mr Campbell's recollection, he considered, at the time, that this error was 'no big deal' and that it would be easy to rectify his enrolment status by simply filling out some further forms. Mr Campbell did not consider notifying AUSTUDY.
Shortly after, on 1 September 1995, Mr Campbell then travelled overseas. Mr Campbell stated to the Tribunal that the purpose of this trip was to try to find a University course in South East Asia where he could continue his interest in Asian Studies. Mr Campbell acknowledged that he flew overseas a number of weeks before the mid-session Semester break and that he was going to miss out on approximately one month of lectures and course work. Nonetheless, Mr Campbell said that he did not believe that his studies would suffer to any great extent. He also thought the issue of clarifying his subject load could wait and did not further follow-up on this matter before leaving for overseas.
Whilst overseas, Mr Campbell had his Visa card stolen and copied. He stated to the Tribunal that this occurred in Bangkok towards the end of his holiday. Consequently, when he tried to use his card in Jakarta, he could not access his account. Mr Campbell stated that his friend with whom he was travelling, then loaned him enough money to travel to Bali. He was then 'stuck in Bali' with no money and no way of promptly returning to Australia.
Mr Campbell said that he was able to stay at a former employer's house in Bali until he could sort out what had happened to his credit card. Mr Campbell also said that he remained in Bali longer in order to repay debts to friends who had loaned him money (in order to buy food and cover other living expenses while he was there). He stated: "it made no difference to me if I was going to be one day late or six months late, my priority was to repay the money which I had borrowed from people in Bali and to find out what had happened to my VISA".
During this time, AUSTUDY payments were still being credited to Mr Campbell's bank account. However, Mr Campbell stated to the Tribunal that he had no way of knowing this at the time since he did not have access to his bank account. He also stated that he thought that the Department of Immigration would have informed the Department of Education, Training and Youth Affairs that he was out of the country and so in this sense, Mr Campbell asserted that he received the money unknowingly and in good faith.
Mr Campbell stated to the Tribunal that he was able to return to Australia in late October 1995. By this time, and to Mr Campbell's surprise, The University examinations had already been conducted. Mr Campbell said that he thought that exams were always held at the end of each year, in November or December and he was very surprised to learn that he had missed them.
Mr Campbell agreed that he had made no efforts either before going overseas or during his time overseas, to find out when the exams were actually scheduled. Mr Campbell had purchased an open airline ticket, which was valid for twelve months; Mr Campbell had no definite date of return on his ticket.
Mr Campbell also stated that in the circumstances, it was clearly also too late to rectify his subject enrolment status as it was too late to enrol in the third subject.
In Mr Campbell's written evidence he states:
"On return (later '95) I was told by classmates & confirmed by admin (sic) that exams had concluded. I could not leave Indonesia until I had repaid debts incurred & loans given me by Indonesian friends. Not much in Australian dollars but substantial amounts for people on Indonesian salaries. First order of business was applying for belated exams due to special circumstances, not trying to correct enrollments. 1 subject decided on assessment. 1 exam set for Feb/Mar (sic) as special exam – the final subject (in dispute) due to enrollment error unable to be scheduled even belatedly. At this point any further efforts to correct enrollment were useless." (Exhibit A1)
Mr Campbell stated that he organised to sit a late exam for one of the two subjects in which he was enrolled.
Mr Campbell had also organised to travel to India on 2 February 1996 and he therefore sat the exam from India. Mr Campbell's state of priorities is described as follows:
"Next order of business was putting together proposals for completing 3 independent units in India – only possible if the funds were refunded by Visa Card after the investigations proved my statements correct in all areas. India proposals took all the holiday period to prepare, lodge, have approved & then the details of contacts with Indian Universities, individuals, business & schools covered by our intended areas of activity left no room mentally or time-wise to do anything else 'cause (sic) as Visa Card refund took time, little was left if we were to depart on our intended date. As all efforts in changing enrollments or associated matters proved fruitless, I concentrated on the issues at hand plus studying for the special exam; which involved advice from lecturers, reading….. etc.etc (sic)" (Exhibit A1).
Mr Campbell stated to the Tribunal that he completed the exam from India and sent it to Australia; he further stated that the exam was then sent to him in India – informing him that he had failed the exam. Mr Campbell said that he returned the exam with his own comments and assessment back to the marker. However, the University has no record of Mr Campbell sitting this late exam.
Mr Campbell related to the Tribunal that he experienced extremely difficult times in India, he suffered from severe depression and he also contracted Hepatitis C. He returned to Australia because of his extreme ill health.
Upon his return to Australia, Mr Campbell was admitted into hospital. He soon realised that he would not be able to return to his studies. Mr Campbell told the Tribunal that another factor contributing to his decision not to return to study was that his mother passed away in early 1997; Mr Campbell remained in Sydney to look after her before her death.
Mr Campbell stated that he is currently on a Disability Support Pension. His rental payments for his Government Housing accommodation and AUSTUDY repayments are automatically debited from his Pension and he thus receives approximately $200 per fortnight. From this amount he must repay a number of outstanding bank loans and he also has expenses in relation to his medication for a number of conditions from which he suffers. He stated that after all his necessary expenses, outlined above, he has approximately $3.00 to $4.00 per day to live on.
Accordingly, Mr Campbell asked the Tribunal to consider that he is in a very tight financial situation. He asked the Tribunal to consider that his travels abroad and the consequences which these travels brought about for him, including the debt which he incurred from AUSTUDY, have brought extreme hardship upon him. This hardship is not only limited to financial hardship but also involves the stress of continuing legal proceedings in these and other matters.
In a Statutory Declaration provided by Mr Campbell , he states:
"For the sake of my dignity, self-respect and sanity I will not re-cover ground that has, to date proved fruitless.
The law of diminishing returns means there is little or no real compensation to be won for the past 5 years.
Until 'you' are in a situation like this 'you' are unaware of how taxing it is". (Exhibit A1).
Mr Campbell also told the Tribunal that he suffers from Bipolar Disorder. Mr Campbell diagnosed himself with this condition in the 1970's, however, he has only been receiving medication since 1996. He stated to the Tribunal that when he is on a "high", he feels as though he can do anything and when he is "low" and depressed, he cannot even take care of himself properly or get out of bed.
Mr Campbell described for the Tribunal that in 1995, he was experiencing a classic "up" stage in his life: he felt positive, powerful and in control of his life. He felt that he could undertake any task and that any problem which came up, including the issue of his University enrolment and AUSTUDY implications, was "no big deal". Mr Campbell described to the Tribunal that when he is on a high, "it is like life at a 120 per cent".
Mr Campbell said that during 1995, he was attending many lectures for which he was not formally enrolled because he was trying to immerse himself in University life and he enjoyed the University lectures and found them interesting.
Mr Campbell also said that at times when he is on such a manic high, it is possible that he does not pay very much attention to detail and so it is conceivable that although he thought he was enrolled in three subjects in 1995, he may well have only enrolled in two (although he maintains that he did attend the third subject as though he was enrolled and that he was therefore doing a full-load for the purposes of AUSTUDY).
Mr Campbell also stated that he probably did not have the requisite insight at the time to realise that an administrative error, either on his part or the University's, could lead to the years of consequent strife and legal proceedings.
In his written statement to the Tribunal, Mr Campbell states:
"If the enrollment error was mine it was unintentional. I would not sabotage myself on purpose. I have done everything I can to fix & defend this situation…" (Exhibit A1).
Mr Campbell was not on medication for Bipolar Disorder in 1995. Dr C Moran, Locum General Practitioner, certified that Mr Campbell has "Bipolar Disorder" and has been treated in Dr Mayne's practice (Mr Campbell's treating Doctor) for three years (Exhibit A4).
In response to questioning by Mr Peek for the Respondent, Mr Campbell stated that he did not cancel his trip to South East Asia in 1995, nor immediately rectify his enrolment before he went overseas, because he felt that it was not his mistake to fix. Rather, he considered it an administrative error on the part of the University.
Mr Campbell pointed out that the University was experiencing a lot of trouble with its administration and enrolments as it had just began to operate at Port Macquarie and so he considered that it was a simple matter, which the University should clear up and not a cause to cancel his trip.
Equally, Mr Campbell did not consider that he had a responsibility to notify AUSTUDY, as it was, in his words, "not my mistake". He did not think that he had to notify AUSTUDY "about other people's mistakes".
With regard to questioning about his planned overseas trip in 1995, including the fact that he was going to be away the whole of September whereas the mid-session break was only for four days, Mr Campbell said that although he had neither asked for nor received formal permission from his lecturers, he had discussed it with them and also with the Dean of the University.
Further, when asked whether he contacted the University from Bali to let the administration know that he would be returning late, Mr Campbell answered that he did not. Mr Campbell said that he considered that his problem was with his VISA card and not with the University and thus he was not about to call the University and "tell them my business". Mr Campbell also explained that during his time in Bali he was living everyday with the thought that tomorrow he would be returning to Australia. He also stated that he felt that he had enough troubles to deal with and that with everything that was going on, he did not even think to tell the University.
Mr Campbell also explained that since he was a mature age student, he did not feel that he was obligated to explain himself to the University. In his words: "I was 44 years old, did you think I was going to call people younger than me to ask for a late note?". Mr Campbell stated that the important people in his life, such as his ex-wife and children, his parents and friends, knew what was happening with him in Indonesia and he reiterated that he did not feel that these matters were any of the University's business.
During close questioning, Mr Campbell finally conceded that he could not remember the name of the third subject, which he claims he attended and in which he initially thought he was enrolled. However, he did remember that it was a literature subject. Mr Campbell also stated that he submitted work in for this subject.
Mr Peek also questioned whether Mr Campbell felt that he had a moral entitlement to AUSTUDY, to which Mr Campbell replied that in his understanding, if he attended most lectures and sat the exams, he was qualified for payment.
SubmissionsMr Campbell contended that the responsibility for his incorrect enrolment lay with the University and not with himself. He asked the Tribunal to consider that there are two issues here: firstly, an administrative error on the part of the University that led to his incorrect enrolment and secondly, that once he was 'stuck in Bali', he had no way of notifying AUSTUDY within seven days of his changed circumstances.
Mr Campbell contended that with the severely limited funds which he had available to him in Bali, he was not in a position to spend money on an international call either to the University or the Department. Mr Campbell therefore stated that the Tribunal should acknowledge that neither his incorrect enrolment nor his failure to notify the Department of it, were actually his fault. In Mr Campbell's submission, "it was all outside my control".
Mr Campbell further submitted that the onus should not be on him to provide documentation extending back five years to 1994-1995 to his initial enrolment. Mr Campbell contended that he had no reason to keep a complete record of all his University documents and that he now believes that he is being punished for not being able to prove what he says with documented evidence.
Mr Campbell also submitted that he cannot understand why "everyone" assumes the mistake is his and not the University's; especially in light of the fact that the University, being newly established, did make a lot of administrative errors at the time.
Mr Campbell asked the Tribunal to accept that he should not be made responsible for other people's mistakes. Mr Campbell pointed out that people at the University and the Department are being paid to do their jobs properly whereas he is "not being paid to check up on their mistakes".
In the alternative, Mr Campbell submitted that it is possible that he did not properly enrol himself in the third University subject. Mr Campbell contended that maybe as a consequence of being on such a "high" in 1995, he may have taken on too much and overlooked things.
In relation to his obligation to inform AUSTUDY of changes in circumstances, subject enrolment and the like, Mr Campbell said that he considered the Regulations to be unreasonable as there was no way he could have informed the Department from Bali about his enrolment or late return to Australia.
On behalf of the Respondent, Mr Peek put forth a number of contentions, which he urged the Tribunal to accept. Mr Peek sought primarily to rely upon a document entitled 'Statement of Facts and Contention', which has been taken into evidence (Exhibit R1) states:
"The applicant was not entitled to AUSTUDY for the period 20 March to 31 December 1995 as he was not enrolled in and undertaking at least three quarters of the usual workload for the course in respect of which he applied for AUSTUDY. [AUSTUDY Regulation 34(2)]
Southern Cross University has no record of the applicant being enrolled in or having undertaken any additional course in Semester 2 1995 to those listed in its letter to the SSAT of 25 October 1999 (T41), let alone one matching the description "a literature course".
The applicant did not sit an examination in this subject and is unable to provide any evidence to support his contention such as any written coursework completed in respect of this course, acquisition of relevant texts or materials for this course or even nominate a witness who could verify his attendance at lectures etc.
That the applicant was unable, during the preliminary stages of this application, to provide any further details which may have assisted the respondent to make further enquires of the University to verify the assertions made by the applicant that he was enrolled in and attending this additional course.
That the applicant left Australia three weeks prior to the commencement mid-semester break (sic) is not consistent with his stated intention of travelling during the mid-semester break and returning to complete his studies for the balance of the semester.
The applicant knew he was not enrolled in a third subject for Semester 2 1995 before he left Australia. There is no evidence to support any assertion made that he attempted to rectify this either before he left or on his return. He did not arrange to sit a post exam in this subject as he did with the others.
In any event, even if the Tribunal found that the applicant undertook this additional subject despite not being formally enrolled, the requirements of AUSTUDY Regulation 34(2) are cumulative. A student must be enrolled in and undertake the approved course for which AUSTUDY is requested in order to be entitled to it.
Even if the Tribunal finds that the applicant was enrolled in and undertaking three subjects in Semester 2 1995, any entitlement for that semester would cease from 1 September 1995 as the applicant ceased to undertake study from that date, abandoning all three subjects.
…"In relation to the Tribunal's power pursuant to sections 289 and 290C of the Act, Mr Peek submitted that firstly, in relation to section 289:
"This section has no application because the 1995 overpayment was caused by the applicant's mis-statement on his application form that he would be studying full-time for all of 1995 and/or his failure to notify the Department when he realised he was not enrolled in a third, additional subject in Semester 2 1995. The 1996 overpayment was caused by the applicant's failure to notify the Department he had ceased studies as required by AUSTUDY Regulation 190(1)(iv), within the seven day period provided by section 48 of the Act. The 1996 overpayment was raised within six weeks of the payment giving rise to it in any event and application of section 289 to it is precluded by section 289(1A) of the Act..." (Exhibit R1, p6)
Mr Peek also pointed out that pursuant to AUSTUDY Regulation 109(1)(iv), a student receiving AUSTUDY must notify the Department, in writing, within 14 days if there are any changes to their course or subject enrolment. Mr Peek submitted that Mr Campbell breached the Regulations as a result of his failure to notify the Department.
In relation to section 290C of the Act, Mr Peek contended that:
"Section 290C(a)(i) of the Act precludes waiver of an overpayment if the debt arose from the debtor or another person knowingly making a false statement or a false representation or failing or omitting to comply with a provision of the Act."
The Respondent contends that this precludes operation of this section in this case because Mr Campbell mis-stated on his application form that he would be studying full-time in 1995, although he was not formally enrolled in three subjects in second Semester 1995. In the Respondent's submission Mr Campbell was also not properly undertaking the two courses which he was enrolled in (because he was overseas for two months of the semester).
Further, Mr Campbell did not notify the Department, as required, of his actual subject enrolment nor did he notify the University or the Department that he was stranded in Bali and would be late returning to Australia. In Mr Peek's submission, regardless of the fact that Mr Campbell was delayed overseas, he was under an obligation to notify the Department of his enrolment status before he left Australia.
Even if the Tribunal found that under 290C(a)(i) of the Act, Mr Campbell did not knowingly make a false statement or representation or fail or omit to comply with a provision of the Act, on the available evidence, Mr Peek submitted there were no special circumstances making it desirable to waive the debts. Mr Peek further submitted that the circumstances of this case were not appropriate to allow write-off of the debts under section 287 of the Act.
Indeed, Mr Peek's submission went as far as to say that it was 'implausible' that someone who was bona fides in their intention to sit for exams would not seek to find out, before embarking on an overseas holiday, when those exams were due to be held. By this the Tribunal understood that the Respondent is seeking to bring Mr Campbell's credibility into question.
Mr Peek did not seek to rely on any authorities to support the Respondent's submissions.
Further Submissions Following the HearingAnother matter, which arose during the hearing, was the question of whether Mr Campbell does in fact suffer from Bipolar Disorder and the impact that this condition may have had on his actions in 1995. Such matters obviously may have some bearing on the consideration of the special circumstances provisions, should the requirements of subsection 290C(a)(i) be met.
During the hearing itself, the Tribunal sought to obtain further information in relation to Mr Campbell's Bipolar Disorder by calling Mr Campbell's General Practitioner. This course of action being unsuccessful, Mr Campbell agreed to obtain a written medical certificate from his doctor about this condition and provide it to the Tribunal.
Mr Peek agreed, on behalf of the Respondent, that if Mr Campbell does suffer from Bipolar Disorder, this would amount to a countervailing circumstance, which could be considered in relation to his failing to notify the Department about his correct enrolment status in 1995.
Subsequent to the hearing, the Tribunal received a letter from Dr Moran. The Respondent was provided with a copy of Dr Moran's letter and on 17 January 2001, being quite some time after the agreed reply date, Mr Peek sent in further submissions.
The Respondent thus further submitted that:
"…
It appears that Mr Moran is not in fact the applicant's usual treating doctor, but a locum operating in Dr Mayne's practice on a temporary basis, who has compiled his report on the basis of notes maintained by Dr Mayne.
While Dr Moran relays the diagnosis that the applicant "has Bipolar Disorder", he does not provide any detail as to when the diagnosis was first made or how long the condition has persisted.
Similarly, there is no detail in the report as to how the condition may have impacted on the applicant at the time the overpayment arose or how it might now impact in any way which may make it desirable to waive the overpayment.
As the report states that the applicant has been treated by Dr Mayne's practice for three years, then it would appear that he has not been diagnosed with this condition before then.
As such, there remains no evidence before the Tribunal that the applicant either suffered Bi-polar disorder in 1995, or that if he did, it had some effect on the circumstances in which the overpayment was incurred.
The respondent notes that the DSP report relating to the applicant at T39, made on 18 May 1999, by Dr Mayne himself, does not diagnose the applicant as suffering Bi-polar disorder.
The respondent also notes that the applicant gave evidence at the hearing that he was not effected by any illness in 1995.
…" (Exhibit R2)Following the Tribunal receiving these submissions, the Tribunal sent a letter to Mr Campbell inviting him to make final submissions. By letter received on 31 January 2001, Mr Campbell submitted:
"…
What relevance does health issues have? I have – without a doubt – proved mistakes on the Uni's part with enrollments for both semesters 1995. I enrolled in 3 subjects.
Except to cover the atrocious treatment & protracted ignorance I have received for a bloody long time; there is no other way "you" could support the position of DEET.
The question is:-
How can I possibly repay in full all the appeals people who have been so supportive, understanding & asiduous for 5 years 3 months & 27 days – not unlike yourself – or- nearly 64 months or 275 weeks or 1,942 days or need I continue?
I guess I could start with a warm, heartfelt "Thankyou all". …" (Exhibit A5)By further letter from Mr Campbell received by the Tribunal on 6 February 2001, Mr Campbell stated that all his records had been provided and made available to the Locum doctor and to Dr Mayne. He also questioned why his overpayment debts were being pursued "with more gusto than Ivan Milat" (Exhibit A6).
FindingsThe Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence of the Applicant and the Respondent, their respective further submissions and the relevant legislation.
The Applicant was found to be credible, by his own admission though, he may have enrolled himself incorrectly in 1995. The Tribunal therefore does not accept the suggestions of the Respondent that the Applicant purposefully mis-stated his position to the Department.
The Tribunal must determine firstly whether or not Mr Campbell owes a debt to the Commonwealth arising out of the overpayment of AUSTUDY during 195 and 1996.
In relation to Mr Campbell's contention that there was a sole administrative error by the University or Respondent, the Tribunal is not able to find, on the evidence, that the enrolment error was solely an administrative error. The Applicant believing that he was properly enrolled is not tantamount to saying that he did properly enrol and that the error lies with an administrative error on the part of the authorities. Mr Campbell himself ultimately conceded that he may have overlooked the enrolment, (albeit maintaining that even if he had overlooked enrolling in the third subject, he did attend the lectures and complete course work).
On the evidence before it, the Tribunal cannot find that the wrong enrolment was solely the result of any Departmental administrative error. If the Tribunal had found that there was an administrative error than that would be the end of the matter. However, in the present circumstances the Tribunal must continue to the next issue for inquiry, namely, Mr Campbell's failure to notify the Department of his enrolment status once he found out that he was only enrolled in two subjects. The Tribunal finds that Mr Campbell failed to do this.
The Tribunal finds that Mr Campbell failed to notify the Department because once he was overseas and "stuck in Bali", his concerns were to find out what happened to his Visa card, to repay money borrowed from friends in Bali and to return to Australia. The Tribunal also notes that Mr Campbell left Australia with an open 12 month ticket and that he had no set date for return. Further, Mr Campbell made no arrangements to sit a post exam as he subsequently did for other subjects.
In the circumstances, the Tribunal therefore finds that Mr Campbell was not a full-time student for the purposes of AUSTUDY and that he did not notify the Department of this change in his circumstances as required by the Regulations. In reaching this finding, the Tribunal also notes that on the AUSTUDY application form, next to Question 16, there is a boxed message which reads:
"IMPORTANT: Read the AUSTUDY definition of "full-time student" …the definition is based on your course, not the time you send studying. If you are …unsure, attach a list of subjects and course details...".
Further, the evidence indicates that Mr Campbell had previously received AUSTUDY for courses which he undertook in 1989. The Tribunal therefore finds that Mr Campbell had previously filled in AUSTUDY application forms and was familiar with them. The Tribunal also notes that AUSTUDY forms state in a large boxed message, which reads:
"IMPORTANT: You must tell AUSTUDY of any changes to the information you have given on your form within 14 days of that change. Failure to advise may result in a penalty of $10 a week…"
In information contained in the information forms about applying for AUSTUDY, it states:
"During the year…If you change any information given on your form, you must tell the Department within seven days of the change. The change may affect the amount of AUSTUDY you are entitled to and could lead to an overpayment which must be repaid. The longer you delay telling us, the larger your overpayment could become…" (T38, AUSTUDY 1995 Application and Guide, p 174)
The Tribunal therefore finds that Mr Campbell knew or should have known that he had to notify the Department. The Tribunal decides therefore that Mr Campbell was overpaid AUSTUDY in the amount of $3,3133.20 for the period 17 June 1995 to 31 December 1995. This overpayment is a debt due to the Commonwealth.
In relation to the 1996 overpayment of AUSTUDY, Mr Campbell concedes that he owes the Department $797.04 for the period of 15 June 1996 to 16 August 1996. The Tribunal finds that Mr Campbell failed to notify the Department that he had ceased studies as required by AUSTUDY Sub-regulation 109(1)(iv) and accordingly determines that a debt of $797.04 is owed by Mr Campbell for an overpayment of AUSTUDY in 1996.
The Tribunal now turns to the issue of debt recovery. Subsection 287(1) of the Act provides the discretion for a debt to be written off. Subsection 287(2) of the Act refers to the discretion to write off debts included in a class of debts determined by the Minister by notice published in the Gazzette. The Tribunal has ascertained that at the relevant time there were no class of debts determined by the Minister and published in the Gazzette.
In considering whether or not to write off a debt, the Tribunal has considered that writing off a debt does not extinguish it. As Justice Mathews noted in Re L and Secretary, Department of Social Security (1995) 21 AAR 412, the debt remains enforceable but a decision has been made not to pursue it either indefinitely or for a set period.
Further, the Tribunal is aware that any practice of a decision-maker, to use write off provisions to circumvent the restrictions placed on the waiver provisions, is impermissible, as discussed by Justice Davies in Lee and Secretary, Department of Social Security (1996) 68 FCR 491.
The Tribunal also notes that the case law in the Social Security jurisdiction determined prior to 1997 is now to be read in light of amendments which were made to legislative provisions for write off for debts raised after 1 October 1997 (or amounts still outstanding at that time). The Tribunal further notes that the new write off provisions were intended to codify the discretion to write off debts and to restrict the broader approach signified in the earlier case law (see Perks and Department of Family and Community Services [2000] AATA 671).
Notwithstanding this, the Tribunal, having considered the legislation as it applies to the circumstances of Mr Campbell, has decided that it is correct to write off the debt which Mr Campbell owes to the Commonwealth.
In Mr Campbell's circumstances, the Tribunal accepts that his financial situation is extremely straightened. To have him repay the AUSTUDY debts from his remaining $3.00 to $4.00 per day, which he has to live on, would be to cause him in the Tribunal's view, excessive hardship.
Further, Mr Campbell suffers from Bipolar Disorder which further impacts upon his ability to deal with such matters as the repayment of his debts, let alone his day to day survival. Mr Campbell is also in receipt of a Disability Support Pension. He thus has a fixed income and there are no foreseeable prospects of his financial situation improving. Mr Campbell's evidence, which the Tribunal accepts, is that his income is further depleted by the need to purchase costly medication for his medical conditions.
The Tribunal determines that given Mr Campbell's severe financial position, the impact of his Bipolar Disorder, the further stress of the debts on Mr Campbell as well as pragmatic fiscal considerations, that to pursue the debt at this point would be unrealistic. It is thereby appropriate to write off the AUSTUDY overpayment debts of $3,133.20 and $797.04. The Tribunal considers that the combination of Mr Campbell's poor long-term financial prospects and compassionate considerations make such a determination fair and just.
For completeness, the Tribunal next considers the circumstances in which a decision-maker may waive a debt are set out in sections 289 and 290C of the Act, which are outlined above. As was stated above, the Tribunal cannot find that the debt arose solely because of administrative error, therefore there is no scope to waive the debt pursuant to section 289 of the Act.
If the Tribunal had not decided to write off Mr Campbell's AUSTUDY overpayment debts, then in regards to section 290C of the Act, the Tribunal must firstly decide whether Mr Campbell "knowingly" failed or omitted to comply with a provision of the Act or made a false statement. If he had a Bipolar Disorder, it is possible that he was not acting with requisite insight to say he knew what he was doing or obliged to do.
The problem for Mr Campbell is that the evidence suggesting that his actions were affected by this mental condition during the relevant time period in 1995 is very sparse. Dr Moran's letter of 5 December 2000 does not assist. Dr Mayne's Treating Doctor's Report of 18 May 1999, for the purpose of Disability Support Pension application mentions depression but not Bipolar Disorder (T39). On the evidence before it, the Tribunal is thus unable to find that Mr Campbell was prevented from complying with his AUSTUDY obligations or unable to know of these obligations because of this condition. While Mr Campbell asserts that he has had the condition since the 1970's, the earliest the Tribunal could date this condition from Dr Moran's evidence is 1997 (although as noted above, in the Tribunal's view, it is nonetheless appropriate to consider Bipolar Disorder as it currently affects Mr Campbell's ability to repay the debts).
Thus whilst the Tribunal can empathise with Mr Campbell and in this sense, it can accept that he has "special circumstances" which would make it appropriate to waive the debt under subsection 290C(b) of the Act, namely his health and poor financial situation, the Tribunal cannot ignore the fact that Mr Campbell does not satisfy the prerequisite clause in the legislation, namely subsection 290C(a). The Tribunal finds that Mr Campbell did know of his obligations to notify the Department and the University of his incorrect enrolment and changed circumstances but chose not to do so for various reasons. Mr Campbell had been informed in various Departmental correspondence of his obligations and the possible consequences of failure to comply. In such circumstances, Mr Campbell does not satisfy the requirements of section 290C of the Act. Thus it is more appropriate to write off rather than to waive the debt.
In all the circumstances, pursuant to subsection 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the decision under review is set aside and the Tribunal decides that Mr Campbell's AUSTUDY overpayment debts of $3133.20 for 1995 and $797.04 for 1996, are to be written off pursuant to subsection 287(1) of the Act.
I certify that the 99 preceding paragraphs are a true copy of the reasons for the decision herein of SM BULLOCK
Signed: .................[sgnd].............................................................
Sharonne Brainenberg AssociateDate of Hearing 28 November 2000
Date of Decision 7 February 2001
Representative for the Applicant Mr J Campbell, Self RepresentedRepresentative for the Respondent Mr G Peek, Solicitor, Australian Government Solicitors Office.
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