Conner and Department of Employment Training and Youth Affairs

[2000] AATA 122

DECISION AND REASONS FOR DECISION [2000] AATA 122

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No Q1998/215

GENERAL ADMINISTRATIVE  DIVISION       )          

Re      ALLAN ROBERT CONNER        

Applicant

And    DEPARTMENT OF EMPLOYMENT TRAINING AND YOUTH AFFAIRS   

Respondent

DECISION

Tribunal       Mr K L Beddoe (Senior Member) 

Date22 February 2000

PlaceBrisbane

Decision      The Tribunal decides that the decision of the Social Security Appeals Tribunal is affirmed.       

Decision No  (Sgd)     K L Beddoe
  Senior Member
CATCHWORDS
AUSTUDY : Overpayment of allowance – Full time workload – Eligibility Check Form – Debt attributable to administrative error

AUSTUDY Regulations Regulation 34, 35, 36
Student and Youth Assistance Act 1973  s 289(1), s290C

REASONS FOR DECISION

Mr K L Beddoe (Senior Member)             

1. The applicant sought review of a decision of the respondent to raise and recover an overpayment of living allowance paid under the AUSTUDY Regulations ("AUSTUDY"). The amount claimed is $5,242.56. That decision was varied by the Social Security Appeals Tribunal with a consequential reduction of the debt to $4,442.85.

2. To get payment of AUSTUDY a tertiary student must meet the requirements of Parts 1 and 3 of the AUSTUDY Regulations. In particular Regulation 34 requires:

   (a)A tertiary student must study full time.

   (b)To be a full time student a student must be enrolled in and undertake at least ¾ of the normal amount of full time work which by virtue of Regulation 35 is the normal full time load specified by the institution or half the normal amount of full time work.

3. The hearing of this matter commenced in Rockhampton and was adjourned for resumed hearing by telephone in Brisbane. Following the resumed hearing written submissions were made by the parties. The documents lodged in the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal and further documents were tendered and marked as exhibits.

4. At the initial hearing the applicant was represented by his mother and he represented himself at the resumed hearing.  Mr Bishop represented the respondent.

5. By an application dated 29 January 1996 the applicant applied for AUSTUDY (T3). The application stated that the applicant was to undertake a one year course at Gateway TAFE College leading to the Certificate in Clothing Manufacture. Study was to be on a full time basis. This was an important step in life for the applicant who had been unemployed from 1992.

6. It was accepted by the respondent that the applicant was a full time student and AUSTUDY was paid accordingly. Details of the payments are found in Exhibit 2.

7. As Exhibit 2 sets out, the applicant progressively withdrew from subjects as he found those subjects difficult.  Document T9 includes the Student Details Report and the Student Academic History Report prepared by the Brisbane Institute of TAFE in relation to the applicant.

8. The Social Security Appeals Tribunal found that the applicant was a full time student for Semester 1 1996.  The respondent does not dispute that finding and on the material before me I am satisfied the finding was correct, and I so find.

9. As to Semester 2 the applicant enrolled in the following subjects with the required hours of attendance noted beside the subject, together with date of withdrawal or completion of course.

   Module       Subject  Hours            List Day Attended
   TCF056      Pattern Making III   48  10. 9.96
   TCT057      Pattern Making IV   48  12.11.96
   TCF092      Headwear I   48  withdrew 17. 7.96
   TCF039      Grading I   32  6. 11.96
   TCF030      Garment Assembly III                48  9. 9.96
   TCF031      Garment Assembly IV                48  11.11.96
   TCF053      Introduction to Decorative
      Textiles   60  15.11.96
   (Enrolments over 2 Semesters)
   TCF000      Small Business Operations      35  withdrew 22. 7.96
   TCF118      Work Experience   35  -
   TMS625     Basic Communications             38  withdrew 22.7.96
     440 hours

Document T10 shows that the applicant formally withdrew from Headwear I, Basic Communication, and Small Business Operations, by or immediately upon the commencement of Semester 2 leaving total enrolled hours as 319 hours.  The total module hours for the year was 929 hours.  The Semester 2 enrolment can therefore be calculated on a percentage basis as follows:

1. 100  

   x  =         68.67%          
   (929 x .5)                  1  

1. Taking into account the three withdrawals at the start of Semester 2 the applicant's enrolment was less than 75% of the normal amount of full time work determined by Brisbane Institute of TAFE (Regulation 35).

2. The applicant was required to complete an AUSTUDY Eligibility Check form which he lodged with the respondent on 15 August 1996 having signed the form on 6 August 1996 (T8).

3. In response to a question "Are you studying part time?" the applicant answered "No" by ticking the box. He also answered "No" to the question "Have you changed your course details (eg dropped a subject or changed your course) since applying for AUSTUDY in 1996?"

4. He failed to answer the question "Have you told AUSTUDY about studying part time or changing course details?"

5. The changes to the applicant's course became known to the respondent for the first time after an enrolment check from information supplied by Brisbane College of TAFE in January 1997.

6. The material before the Tribunal including the applicant's evidence satisfies me that the applicant had considerable difficulty with the theory subjects in his course which he apparently ignored to concentrate on the practical subjects.  An example is in Document T22.3 which shows a lack of regular attendance of classes in the subject "Basic Communication" having attended only six of the 16 classes held.  It would be reasonable to infer that the difficulty with the theory subjects was exacerbated by the failure to attend classes.  The applicant's explanation at the resumed hearing satisfied me that the applicant was only undertaking those subjects in which he thought he could do well.  At all relevant times he knew that he was not undertaking all the enrolled subjects.

7. In so far as the applicant asserted that there was a difficulty with theory subjects I have considered whether the concessional treatment accorded by Regulation 36 should be available in this case. There is, however, nothing in the material before me that would justify findings of fact to support the operation of Regulation 36. The applicant's written submission refers to advice given by counsellors at the college but does not explain why the advice was given or what that advice was, other than "continue the course with a reduced work load". Accepting that such advice was given the applicant has not explained why he failed to advise the respondent about the changed circumstances of his enrolment. If, as he says, he sought advice or was given advice by counsellors about reducing his workload it cannot be a matter of oversight that he answered the questions in the AUSTUDY Eligibility Check form incorrectly in August 1996. If the advice was given after August 1996, which would be inconsistent with the applicant's conduct, then he was well aware that such changes were required to be notified.

8. I am satisfied, on the material, that the applicant was not a student who was a full time student within the terms of Regulations 34 and 35.  I am also satisfied that Regulation 36 has no operation in this case.

9. It follows that I must find that the applicant was not entitled to payment of AUSTUDY for Semester 2 of 1996. The result is that there has been an overpayment of AUSTUDY which is a debt due to the Commonwealth.

10. Section 289(1) of the Student and Youth Assistance Act 1973 provides for waiver of the right to recover a debt attributable to administrative error.  There is no evidence of a relevant administrative error in this case.  Section 290C of the said Act provides for waiver of the right to recover a debt where there are special circumstances.  It is a condition of the operation of that section that the debt did not result wholly or partly from the debtor knowingly making a false statement or false representation.

11. I am satisfied that the applicant's answers to Questions 5, 6 and 7 in August 1996 on the AUSTUDY Eligibility Check were false answers deliberately made by the applicant so that it must be accepted that they were knowingly false. Section 290C cannot therefore apply to authorise a waiver even if I could be satisfied, which I am not, that there are special circumstances in this case which would justify such a waiver.

12. The decision of the Social Security Appeals Tribunal was correct and will be affirmed.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)

Signed:         
  T G Lowther
   Associate

Date/s of Hearing  25 May 1999
  6 September 1999 (by telephone)
Date of Decision  22 February 2000
Applicant  Mrs Conner
  Applicant in person
Solicitor for the Respondent    Mr Bishop
  Australian Government Solicitor