Collins and Department of Family and Community Services

[2006] AATA 820

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 820

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/218

GENERAL ADMINISTRATIVE DIVISION		)
Re		HEIDI COLLINS

Applicant

DEPARTMENT OF FAMILY  

AND COMMUNITY SERVICES

Respondent    

DECISION        

Tribunal Ms N Isenberg, Senior Member

Date26 September 2006

PlaceSydney

Decision The Administrative Appeals Tribunal has no jurisdiction under section 25 of the Administrative Appeals Tribunal Act 1975 to hear the Applicant’s complaints, other than as to the amount of trade-back of youth allowance for the period 1 July 1998 to 28 August 1998.

…………………………..

Ms N Isenberg, Senior Member

CATCHWORDS

JURISDICTION ISSUE – the Administrative Appeals Tribunal has no jurisdiction under section 25 of the Administrative Appeals Tribunal Act 1975 to hear the Applicant’s complaints, other than as to the amount of trade-back of youth allowance for the period 1 July 1998 to 28 August 1998.

Social Security Act 1991 – chapter 2B, chapter 5, sections 1061ZZFJ and 1061ZZFK

Social Security Student Financial Supplement Scheme 1998

Financial Management and Accountability Act 1997 – section 34(1)

Administrative Appeals Tribunal Act 1975 – section 25

Sukkarieh and Secretary, Department of Education, Science and Training [2006] AATA 446

REASONS FOR DECISION

26 September 2006 Ms N Isenberg, Member

1.      A hearing was held before me on 27 June and 24 August 2006 at which the Applicant appeared without representation, and Mr Richardson appeared on the first occasion for the Respondent and Ms Schuster appeared on the second occasion.

2. The background to the application is somewhat complex. In 1998 the Student Financial Supplement Scheme existed by virtue of Chapter 2B of the Social Security Act 1991 (“the Act”) and the Social Security Student Financial Supplement Scheme 1998 (“the Scheme”).  Under the Scheme, Centrelink could require a youth allowance recipient to "trade-back" an amount of youth allowance in order to be eligible to enter a financial supplement contract (“the contract”) with the Commonwealth Bank.  Under the contract the loan amount was to be repaid to the bank.  Responsibility for collection of outstanding loan amounts passed to the Australian Taxation Office (“the ATO”), to be recovered once the person’s income reached the threshold amount.

3.      What transpired in Ms Collins’ case was set out in the letter to her from the Department of Finance and Administration dated 27 June 2005, in response to her request for a waiver of her debt.  The following is largely extracted from that document:

·On 1 July 1998, Ms Collins took out a loan under the Scheme, and received payments from 1 July 1998 to 13 January 1999 totalling $4,000.00.  On 28 July 1998, Ms Collins told Centrelink that she would be cancelling her loan contract.  For reasons which are unclear, however, Ms Collins continued to receive the payments until 13 January 1999.  Centrelink had advised her that the cancellation would take up to 4 weeks and that Ms Collins would have to repay all money received during this time.

·From 29 August 1998 to 13 January 1999, Ms Collins was eligible to receive Centrelink benefits totalling $1.370.80.  Receipt of those benefits was forgone by her receipt of the loan payments.

·In April and July 2000, Centrelink wrote to Ms Collins advising that if she repaid the amount of "incorrect payments" paid after 29 August 1998, (ie 4 weeks after Ms Collins informed Centrelink she was going to cancel the loan) to 13 January 1999, which totalled $2.741.60, she would be eligible to receive the Centrelink benefits she had forgone from 29 August 1998.

·As Ms Collins did not return any of the payments before the end of her loan contract on 31 May 2003 and she had the benefit of the payments she received between 29 August 1998 and 13 January 1999, Ms Collins was then required to repay the full amount of the loan.

·On 1 June 2003, the loan responsibility for recovery of $4,637.00 was transferred to the ATO.  On 27 October 2003, a Centrelink Authorised Review Officer made a decision to reduce Ms Collins’ debt by the amount that she had forgone (plus indexation).  Therefore, in February 2004 the debt was reduced to $3,046.00.  On 1 June 2004, indexation of $111.00 was added. The outstanding debt was then $3,157.00.

4.      Notwithstanding that it is recoverable through the tax system, it is clear that what Ms Collins entered into was a financial supplement contract which remains a loan from the Commonwealth Bank (per Sukkarieh and Secretary, Department of Education, Science and Training [2006] AATA 446).

5. As Ms Collins apparently is presently only able to work part-time for health reasons and is not earning over the threshold amount, she has not been required to make any payments to the ATO towards this debt. If at the time Ms Collins is required to repay the loan, she considers that she is suffering from severe financial hardship, she can apply to the ATO to have the repayment of the loan deferred. Under sections 1061ZZFJ and 1061ZZFK of the Social Security Act 1991, the Commissioner of Taxation may delay making an assessment for a period that is considered appropriate, or amend an assessment so that no amount is payable under the assessment (which will defer payment of the debt).  At that stage a person may apply to this Tribunal for review of a decision by the Commissioner refusing to amend an assessment after receiving such an application.

6.      Because the ATO has not made an assessment of the debt in Ms Collins’ case, nor has Ms Collins applied to the ATO for a reassessment there is no ‘decision’ for the Tribunal to review.

7. Further, I agree with the Respondent’s submission that the Tribunal has no jurisdiction to review a debt arising under the scheme. Such a debt arises out of contractual arrangements between Ms Collins and the Commonwealth Bank, not through a decision made under the Act. Chapter 5 of the Act provides for methods of recovery and non-recovery of certain debts due to the Commonwealth. The provisions do not expressly refer to debts arising under the Scheme and therefore the Chapter 5 provisions cannot be used to waive recovery of such a debt. The Tribunal only has jurisdiction in respect of decisions made under that Chapter. Accordingly, the Tribunal has no power under the Act to determine that a debt, or any part of a debt, arising under the Scheme is not to be recovered.

8.      Through her MP, Ms Collins sought intervention by the ATO.  She was advised to apply, which she did, albeit unsuccessfully, to the Department of Finance and Administration.   Her application for a waiver was considered under section 34(1) of the Financial Management and Accountability Act 1997.  It appeared, from Ms Collins’ submissions that this may also have been a decision which she was seeking to have reviewed.

9.      The Administrative Appeals Tribunal Act 1975 does not itself set out the decisions that may be reviewed by the Tribunal. Instead, section 25, states that an enactment may provide for review of decisions made in the exercise of powers conferred under that enactment or conferred by an instrument such as rules, regulations or by-laws made under that enactment. It has no jurisdiction unless there is a legislative instrument conferring jurisdiction. Therefore, in order to determine whether the Tribunal has jurisdiction to review a particular decision, reference must be made to the legislation governing the original decision. As each of the several hundred pieces of legislation which give jurisdiction to the Tribunal may not give it in relation to all decisions made under each piece of legislation, care must be taken to ensure that jurisdiction has indeed been given in relation to the particular decision under consideration.

10.     Unfortunately, section 34(1) of the Financial Management and Accountability Act 1997 does not confer jurisdiction on the Tribunal.

11. The Respondent submitted that there is a limited decision under the Act that can be reviewed by the Tribunal: the decision by Centrelink to require Ms Collins to ''trade-back'' an amount of youth allowance.  On review, the Authorised Review Officer (“the ARO”) reduced the amount of youth allowance that Ms Collins was required to trade-back in order to receive a financial supplement under the Scheme.  The ARO affirmed the decision that the amount Ms Collins was required to trade-back between 29 August 1998 and 13 January 1999 should be deducted from the total amount that Ms Collins was required to trade-back.  The Social Security Appeals Tribunal (“the SSAT”) affirmed that decision.  The effect of this decision was that Ms Collins was required to trade-back an amount of youth allowance for the period 1 July 1998 to 28 August 1998.  This appears to be the sole issue that can now be reviewed by the Tribunal.

12.     As was discussed at the hearing, the most favourable outcome for Ms Collins would be that the amount of youth allowance traded-back by her for the period 1 July 1998 to 28 August 1998 would be repayable to her.  Significantly, this would not affect the amount of the contract debt which she would continue to owe, which, by now, is in the vicinity of $3,500.  As her total entitlement to youth allowance between 29 August 1998 and 13 January 1999 was $1,370.80, the youth allowance for the period 1 July 1998 to 28 August 1998 (ie less than 2 months) is likely to be in the order of $600. 

13.     This very limited remnant of Ms Collins’ application is highly unlikely to afford her the opportunity to obtain the outcome she seeks.  Ms Collins may wish to discuss this remaining aspect with Centrelink.

DECISION

14. The Administrative Appeals Tribunal has no jurisdiction under section 25 of the Administrative Appeals Tribunal Act 1975 to hear the Applicant’s complaints, other than as to the amount of trade-back of youth allowance for the period 1 July 1998 to 28 August 1998.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

Signed:   Associate

Date of Hearing  27 June 2006  
Date of Decision  26 September 2006 
Representative for the Applicant               Heidi Collins,
  Self-Represented 
Advocate for the Respondent                    Mr G Richardson / Ms H Schuster

Centrelink Legal Services Branch