Corrin and Secretary, Department of Education, Science and Training

[2006] AATA 481

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 481

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2006/99

GENERAL ADMINISTRATIVE  DIVISION		)
Re		LYSANDER CORRIN

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, SCIENCE & TRAINING

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date2 June 2006  

PlaceBrisbane

Decision The decision under review is affirmed.  

.....................Signed...................

Deputy President

CATCHWORDS

SOCIAL SECURITY – youth allowance payments - whether full time student for the period of receiving payments – whether debt raised by Commonwealth – waiver – “administrative error” – “special circumstances”

Social Security Act 1991 ss 541B, 1223, 1237A, 1237AAD

Groth v Secretary, Department of Social Security (1995) 40 ALD 541

Schulze and Secretary, Department of Family and Community Services (2004) 81 ALD 636

REASONS FOR DECISION

2 June 2006   Deputy President P E Hack SC    

INTRODUCTION

1.The applicant, Mr Lysander Corrin, received youth allowance between 30 October 2002 and 14 April 2003 on the basis that he was, in that period, a full-time student.

2.In April 2003 Centrelink took the view that Mr Corrin had not been a full-time student during that period and was not then a full-time student. Mr Corrin’s youth allowance was cancelled and he was transferred to newstart allowance. In addition, it was determined that Mr Corrin had a debt arising from the fact of payment when he was not entitled to be paid and that there were no circumstances that would warrant waiver of that debt.

3.These decisions were affirmed on internal review (with the correction of an error in the calculation of the debt) and by the Social Security Appeals Tribunal. Mr Corrin now seeks a review of the Centrelink decision.

THE EVIDENCE

4.Mr Corrin was assisted at the hearing by Ms Leeds, his mother. Ms Leeds provided me with a submission (undated) which became Exhibit 2. Because that document made reference to an earlier submission sent by Ms Leeds to the Tribunal I admitted the earlier submission dated 27 March 2006. After the hearing, and without leave to do so, Ms Leeds forwarded a further submission which I have marked Exhibit 5. Centrelink have informed the Tribunal (Exhibit 6) that it has no objection to my receiving this submission although issue was taken with the content of it. It is sufficient for me to observe that in my view the criticisms of Centrelink that Ms Leeds makes in Exhibit 5 are unwarranted. Later, on 23 May 2006, a further document was received from Ms Leeds. It has nothing to do with the present case and I have disregarded it.

5.Mr Corrin was the only witness who gave evidence. With the agreement of Ms Forsyth, the Centrelink advocate who appeared for the Secretary, I elicited from him the details surrounding his study, how he came to claim youth allowance and the circumstances under which it was cancelled. He explained, as well, why he contended that there was not a debt and why, if there was, it ought to be waived.

6.Mr Corrin was cross-examined by Ms Forsyth. At the conclusion of the cross-examination Mr Corrin was given the opportunity to tell me anything else that he regarded as being relevant and he took that opportunity. Finally Ms Leeds was given the opportunity to elicit from Mr Corrin any other evidence that she regarded as being relevant.

7.I set these matters out in some detail because of a submission advanced by Ms Leeds that Mr Corrin “lacked testamentary capacity”. With all due respect to Ms Leeds she has confused the two adjectives: testimonial – relating to the evidence (or testimony) of a witness given viva voca – and testamentary – relating to a will. I am, however, well satisfied that Mr Corrin was perfectly capable of giving evidence. He was lucid and articulate and seemed to have no difficulty in understanding the questions asked of him or in giving answers when questioned. Indeed there were instances where he left me with the distinct impression that he was consciously avoiding answering a question in cross-examination, preferring to give an answer favourable to his case rather than one not favourable.

8.For the reasons that I detail below I am not able to accept much of Mr Corrin’s evidence on contentious issues. There is, however, no dispute about many of the underlying facts in the case. It is evident from the material that at least from January 2000 Mr Corrin was paid newstart allowance. It is relevant to note that on one occasion in January 2002 that benefit was cancelled, and later restored, because he failed to lodge with Centrelink a document that he was obliged to lodge fortnightly.

9.As the recipient of newstart allowance Mr Corrin was obliged to satisfy a “mutual obligation”. Some little time before October 2002 Mr Corrin was made aware by Centrelink that one way of doing so was by undertaking study. Mr Corrin seems to have been attracted to that notion and obtained information regarding a Diploma of Accounting at the Open Learning Institute of TAFE. This was an external course said to be of two semesters, each of 24 weeks, requiring completion of 8 modules a semester.

10.In later September 2002 Mr Corrin enrolled in the course which had the code FNB30199 and received a letter from the Open Learning Institute dated 1 October 2002 welcoming him to his study of the module FNBFS01A. I am satisfied that Mr Corrin received that letter and provided it to Centrelink on 30 October 2002 as proof of his undertaking study, notwithstanding his professed lack of recall of having done so.

11.Mr Corrin was, at this time, receiving newstart allowance. Youth allowance was paid at a lesser rate than newstart allowance however youth allowance recipients were eligible for a student financial supplement loan. Within the records of Centrelink is a notation of a telephone call from Mr Corrin on 3 October 2002 regarding a claim for youth allowance. The note suggests that the Centrelink employee explained to Mr Corrin that because his course was only of 8 months duration he could stay on newstart allowance however, it records, “He wants to apply for [youth allowance] to get [financial supplement loan] also.” The note suggests that Mr Corrin was sent a claim form for youth allowance and other information.

12.On 29 October 2002 Mr Corrin lodged a completed claim for youth allowance with the Beenleigh office of Centrelink. That claim represented to Centrelink,

·that Mr Corrin was then undertaking full-time study (Q1),

·that the course start date was 1 October 2002 and that he would be attending the course from “now”, (Q11)

·that he spends 25 to 30 hours per week studying.

13.On the account of events that Mr Corrin now gives none of this was true. Mr Corrin told me that his course did not start, in the sense that he did not receive course materials, until late December 2002 or early 2003. He says that he explained to the Centrelink official that he would not be studying full-time until then but, he said, he was told that that “would be okay not to start the course until January 2003 and that they would make a note on the computer” to that effect. He says that he was told to write the answers that he gave in the claim.

14.Mr Corrin’s claim was accepted and he was paid youth allowance from 30 October 2002. Thereafter he was sent a number of letters – 13 November 2002, 23 December 2002, 31 December 2002, 8 January 2003 and 10 January 2003 - in each of which he was told that if he stopped being a full-time student he was obliged to tell Centrelink. Mr Corrin professed no recollection of having received these letters although it may well be that he was unable to recognise the different format in which they appear in the T-documents.

15.According to Mr Corrin he received his course materials in late December 2002 or early January 2003 and spent the next 4 weeks or so studying at least 20 hours per week to undertake the assignment set for him. He submitted the assignment, he says, in mid February 2003 and was expecting to receive his results and the next module. Nothing happened. That seems to be because the Open Learning Institute has no record of ever having received the assignment.

16.On 24 March 2003, as a result of information received from the Open Learning Institute that Mr Corrin was studying part-time, Centrelink sent a letter to Mr Corrin regarding the level of his study. He contacted Centrelink on 14 April 2003, telling Centrelink, according to its records, that he had sent an assignment but that the Open Learning Institute had said that it had not been received. He was advised of the likely overpayment. When asked when he had ceased studying Mr Corrin told Centrelink that he had “just decided to now”. Arrangements were made for him to again receive newstart allowance.

17.Centrelink determined that Mr Corrin had not been entitled to receive youth allowance during the whole period of its receipt and on 17 June 2003 an overpayment of $4,845.63 was raised. Mr Corrin was advised of this overpayment by letter dated 17 June 2003.

18.More than 2 years later on 1 October 2005 Mr Corrin wrote to Centrelink seeking “amendment to original debt”. This appears to have been in response to a telephone call from a Centrelink official on 29 September 2005 telling him that he had a debt of some $1,900.00 to pay to Centrelink (The balance appears to have been paid by deductions from Mr Corrin’s benefits).

19.By the same letter Mr Corrin sought the involvement of the Dispute Resolution Centre of the Queensland Government Department of Justice and Attorney-General. Centrelink seemingly was not prepared to partake of the process offered by that Centre.

20.The original decision maker reconsidered, but affirmed, the decision of 14 October 2005 and Mr Corrin was notified of that by a letter of that date. Subsequently on 27 October 2005 the debt calculation was re-checked and revised to $4,009.46. Thereafter the decision was affirmed by an authorised review officer and the Social Security Appeals Tribunal. Proceedings were then commenced in this Tribunal.

MR CORRIN’S RELIABILITY

21.Whilst I accept the general history recounted by Mr Corrin I am unable to accept much of what he says in areas of controversy. In particular, I do not accept his evidence regarding the conversation that he says that he had with a Centrelink official in about October 2002. I reach that conclusion for a number of reasons.

22.First, there is the sheer improbability of Mr Corrin being told something that was so plainly contrary to the statute, that is, that he could receive youth allowance without having an entitlement to do so. Next, there is the inconsistency between Mr Corrin’s evidence of the course not starting until January 2003 and the letter dated 1 October 2002 from the Open Learning Institute. The contents of that letter are quite to the contrary of the notion of the course not starting until January 2003. The letter, which is expressed to have been sent on enrolment, makes reference to a tutor contacting students who had not submitted enrolments within 4-5 weeks of enrolment. The impression that I gained from Mr Corrin’s denial in the witness box of having received this letter was that it was prompted by a recognition that its terms were inconsistent with the case that he sought to raise rather than a genuine and accurate lack of recall of having received the letter.

23.I have already made reference to Mr Corrin’s practice of avoiding answering questions in cross-examination.

24.Then, there is the improbable coincidence of the Open Learning Institute not receiving Mr Corrin’s assignment. It beggars belief that Mr Corrin could send off an assignment, on his evidence, in mid-February 2003 at the latest, and not wonder why, in the period of about 8 weeks thereafter, he got no response and received no further material to study.

25.Finally, it is material to note that nowhere in the material, including the reasons of the Social Security Appeals Tribunal, is there any reference to Mr Corrin having earlier asserted that he had been informed by a Centrelink official of the matters set out in paragraph 13 above. Had he been advised in the terms he now claims I would have expected that there would be some reference to in the correspondence from him to Centrelink and in the information provided to the Social Security Appeals Tribunal.

26.I am equally unpersuaded that Mr Corrin was in fact studying fulltime for a period in January or February 2003. His initial evidence was that this had been for a period of about 4 weeks. That figure was revised upwards to 6 weeks in subsequent evidence in an entirely unconvincing manner. I am simply not satisfied that Mr Corrin was undertaking full-time study even during such a limited period. I do not accept his evidence of having devoted 20 hours per week for that period to study, nor am I able to accept his claim to have submitted an assignment.  

27.However the matter be viewed Mr Corrin was never undertaking full-time study. I simply do not believe him when he says that he did so in the period between January and mid-February 2003. He was not even enrolled as a full-time student.

IS THERE A DEBT

28.If Mr Corrin was not undertaking full-time study then he was not qualified to receive youth allowance. To be qualified to receive youth allowance Mr Corrin had to be undertaking full-time study – a term defined by s 541B of the Social Security Act 1991 (the Act). On no view of the facts, even his own rejected account, could it be said that Mr Corrin satisfied that test.

29.That being so, Mr Corrin has received payment to which he was not entitled, viz. youth allowance in the total sum of $4009.46 in the period between 30 October 2002 and 14 April 2003. By operation of s 1223 of the Act that amount is a debt due to the Commonwealth.

WAIVER

30.Mr Corrin suggested that either of ss 1237A or 1237AAD of the Act had application. I cannot agree.

31.The former operates only where the debt that has arisen is attributable to an administrative error made by the Commonwealth. Mr Corrin suggested that his being misinformed on October 2002 was the administrative error. I reject that contention as I have rejected his evidence on the point. The debt arose because Mr Corrin wrongly represented to Centrelink that he was undertaking full-time study.

32.Moreover, in the circumstances of this case it could not be said that Mr Corrin received the payments in good faith, the other requirement of s 1237A.

33.I am equally satisfied that s 1237AAD has no application. I am satisfied that the debt arose wholly from Mr Corrin making a false representation to Centrelink, that is, that he was undertaking full-time study. And there is nothing about this case that distinguishes it from others, that takes it out of the usual or ordinary case: see Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545 per Kiefel J. I include in that the possibility that Mr Corrin may have been entitled to receive Newstart allowance during the relevant period: cf. Schulze and Secretary, Department of Family and Community Services (2004) 81 ALD 636 at 647.

CONCLUSION

34.It follows that in my opinion the decision under review was correct and should be affirmed.

OTHER ISSUES

35.I should deal with other issues raised by Ms Leeds. She placed much reliance upon an allegation that Centrelink did not wish to participate in the mediation processes offered by the Dispute Resolution Centre of the Queensland Government Department of Justice and Attorney-General. A refusal to undertake mediation cannot affect the position that attains as a matter of law. In another setting it may go to a discretion regarding costs but in my view a refusal to mediate, if found, has no present relevance. Thus I have not found it necessary to determine whether Centrelink did, in fact, refuse to undertake mediation. Ms Leeds was also critical of Centrelink for insisting upon adherence to the legislation. The criticism is misconceived. Centrelink can do nothing else but rely upon the terms of the legislation. It is not within the power of Centrelink (or this Tribunal) to ignore the terms of the statute.

36.For completeness I should deal with the particular arguments relied upon by Ms Leeds in Exhibit 2.

37.Ms Leeds submits, in reliance upon the document at page 183 of the T-documents that,

Lysander could stay on New Start Allowance, but they changed their mind and said Lysander had to go on to Youth Allowance.

The contents of this document have already been set out in paragraph 11 above. I do not read it as saying that Centrelink had a change of mind or that Mr Corrin was required to go on to youth allowance. I read it as evidencing the fact that a Centrelink official told Mr Corrin that he could, if he wished, stay on new start allowance but that Mr Corrin wanted to apply for youth allowance to get access to student supplement loans.

38.Next it is said that Mr Corrin was not warned that if he defaulted “on the terms of the Youth Allowance” he would have to pay back the full amount. I do not regard it as necessary to tell a benefit recipient that the recipient may be required to repay an amount to which there was no entitlement. But even it there were to be such a duty I am not satisfied that the duty was breached having regard to the various warnings contained in the claim form. Nor am I satisfied that, if that failure were, contrary to my view, to be regarded as administrative error, it was the sole cause of the debt. There is nothing in this submission.

39.I have already dealt with the submission that Mr Corrin lacked testamentary capacity. I have no reason to doubt that Mr Corrin fully understood the obligations imposed upon him as the recipient of youth allowance. He certainly did not suggest to the contrary.

40.Then it is said that special circumstances exist because the information presented to him was confusing “with regard to what was his responsibility and what was theirs”. Mr Corrin struck me as someone with sufficient intelligence to read and comprehend the matters set out in the claim form. He did not suggest that he had had any difficulty in doing so nor did he suggest that he had been confused.

41.There is a complaint that “Natural Justice … says he is entitled to be reconnected to [newstart allowance] which pays more than [youth allowance].” The argument, as it was explained to me by Ms Leeds, was that because in the past Mr Corrin’s benefits had been cancelled when he failed to provide information there was an expectation, reasonably based, that he would be informed by Centrelink if there had been a problem with him receiving youth allowance.

42.The first difficulty this argument has is that Mr Corrin gave no evidence of such an expectation. But beyond that difficulty there is a world of difference between Centrelink cancelling a benefit for a breach of, say, the obligation to provide information by a particular date (as happened in January 2002) and Centrelink being expected to know, contrary to Mr Corrin’s declaration, that he was not studying full-time. Mr Corrin could not possibly have had any expectation that Centrelink would notify him that he was not a full-time student.

43.I have carefully read the submissions of Ms Leeds. There is no substance in them.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         ..........Signed......................................................

  Leisa Pendle, Associate

Date of Hearing  16 May 2006
Date of Decision  2 June 2006
Appearing for the Applicant      Ms C Leeds   
Appearing for the Respondent  Ms J Forsyth, Departmental Advocate