Dick and Secretary, Department of Education, Science and Training
[2007] AATA 1146
•20 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1146
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/506
GENERAL ADMINISTRATIVE DIVISION )
Re BELINDA DICK Applicant
And
SECRETARY, DEPARTMENT
OF EDUCATION, SCIENCE
and TRAININGRespondent
DECISION
Tribunal Mr R G Kenny, Member Date20 March 2007
PlaceBrisbane
Decision
The Tribunal varies the decision under review by amending the overpayment period to 21 June 2004 until 30 June 2005; determines that the overpayment in that period is a debt due to the Commonwealth; and remits the matter to the respondent to recalculate the debt which arose during that period.
............[Sgd].............
RG Kenny
Member
CATCHWORDS
SOCIAL SECURITY – youth allowance – applicant undertaking a course of study – undertaking more than three-quarters of a normal full-time workload for part of the study period –sufficient to satisfy the activity test during that period - applicant eligible for youth allowance until 20 June 2004 – overpayment of youth allowance in the period thereafter until 30 June 2005 – debt due to the Commonwealth in that period -– no special circumstances to enable debt to be waived – decision varied in relation to length of overpayment period – matter remitted to the respondent to calculate the overpayment.
Social Security Act 1991 ss 540, 541, 541B, 1223, 1236, 1237A, 1237AAD
Youth Allowance (Satisfactory Study Progress Guidelines) Determination 1998 s 2.1Beadle v Director-General of Social Security (1985) 7 ALD 670
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Re Beadle and Director-General of Social Security (1984) 1 AAR 362REASONS FOR DECISION
20 March 2007 Mr RG Kenny, Member Application
1. In 2004, Belinda Dick (the applicant) commenced the Diploma of Justice Administration course at the Open Learning Institute of TAFE (OLI). She received income support payments under the Social Security Act1991 (the Act) in the form of youth allowance in the period from 25 March 2004 until 30 June 2005. On 14 November 2005, a Centrelink officer, on behalf of the Secretary, Department of Education, Science and Training (the respondent), determined that Ms Dick had been overpaid in the amount of $12,327.88 and that this was a debt due by her to the Commonwealth. The decision was affirmed by an authorised review officer on 21 December 2005 and, in turn, by the Social Security Appeals Tribunal (the SSAT) on 20 March 2006. Ms Dick now seeks review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Issues for Determination
2. Section 540 of the Act provides that, in order for Ms Dick to qualify for youth allowance during a period, she had to satisfy the activity test during that period. In accordance with paragraph 541(1)(a) of the Act, this will be the case if she was undertaking full-time study during that period. A person is undertaking full-time study in a period if the requirements in section 541B of the Act are met and these include the need to be enrolled in and undertaking at least three-quarters of the normal amount of full-time study in respect of the course for that period. In respect of the course that Ms Dick was undertaking, paragraph 541B(2)(b) of the Act provides that the amount of full-time study that a full-time student should typically undertake is the amount as defined by the OLI. In evidence was a copy of a brochure published by the OLI for the Diploma of Justice Administration course. It contains the following information concerning full-time study:
To be considered a full-time student in this program you will need to enrol in 140 hours of course work and successfully complete this workload in 16 weeks. Under certain circumstances, students who successfully complete at least 75% of the workload (105 hours) in 16 weeks may also be recognised as full-time students by Centrelink.
3. Mr Black submitted that this was the appropriate measure for determining whether Ms Dick was undertaking full-time study. I accept that submission in relation to the amount of work required by the OLI. However, I do not do so in relation to the performance criterion in the course brochure which describes the need for the student to successfully complete the amount of work. Section 541B of the Act is not expressed in those terms. It requires that the student be enrolled in and undertaking the work and be making satisfactory progress towards completing it. Subsection 541B(3B) of the Act enables ministerial guidelines to be set for forming an opinion about whether satisfactory progress is achieved and, to that end on 30 June 1998, the then Minister for Social Security made the Youth Allowance (Satisfactory Study Progress Guidelines) Determination 1998 (the Guidelines). These Guidelines set time limits for completion of courses and allow for extension of these where circumstances beyond the student’s control prevent compliance with those limits. The Guidelines distinguish between long and short courses. A long course is defined in section 1.4 as a “course of education the standard minimum length of which is a period longer than 1 year.” The OLI brochure nominates 18 months to 2 years as the usual time-frame of study for full-time students for the Diploma of Justice Administration and, accordingly, it is a long course. Section 2.1 of the Guidelines reads:
(1) Satisfactory progress in a long course is completion of the course within a period of time comprising:
(a) the standard minimum length of the course; and
(b) an additional period for completion of 1 uncompleted subject or unit that is a part of the course.
Examples
1. If the course is a 3 year course and includes semester units, one of which has been failed, or not completed—satisfactory progress is completion in 3 years and 1 further semester; or
2. If the course is a 3 year course and includes yearly units, one of which has been failed, or not completed—satisfactory progress is completion in 3 years and 1 further year.
(2) However, a person who, under subsection (1), is not making satisfactory progress, may, in the opinion of the Secretary, be making satisfactory progress if the person is, or has been, affected by circumstances beyond his or her control.
(3) Reference in this section to a course includes reference to an articulated course that is a long course.
4. That provision does not describe satisfactory progress in terms of successful completion of courses and, indeed, the first example envisages the prospect of a student failing a course in a period and remaining qualified for benefits in that period.
5. The issue for determination is whether Ms Dick was undertaking full-time study during the periods of her enrolment; if not, whether there was an overpayment of youth allowance; and whether any such overpayment is a debt due to the Commonwealth.
Ms Dick’s course of study
6. The OLI brochure describes the Diploma of Justice Administration program as comprising 19 core courses and 5 elective courses. Students do not attend classes. They study course materials which are sent to them and undertake assessments by mailing completed tasks to the OLI for evaluation. These are then returned to the student. When a course has been completed, the OLI issues a course certificate indicating the student’s result. Payment for courses may be in advance of study or by periodic instalments following payment of a deposit. Ms Dick opted for the latter and made fortnightly payments by money order through her local post office. Ms Dick said that, when she began, a maximum of four courses could be undertaken at one time. She said that she commenced in March 2004 and worked on the first set of courses, one after the other, until August 2004. She said that she treated it as a full-time program and worked on the material each day, successfully completing all of the assessment tasks required. She then commenced a second set of four courses. At that time, around October 2004, she experienced considerable disruption in her life and this involved several relocations and interference with her study. She also undertook employment for a period but successfully completed the second set of four courses by February 2005 and then commenced a third set of courses. She said that she also successfully completed these courses during 2005 and that, in total, she achieved passes in a total of 12 courses in the program.
7. Details relating to Ms Dick’s enrolment in the Diploma of Justice Administration program and to her progression through its various courses are not entirely clear either on her evidence or on the records of the OLI. Ms Dick had vague and uncertain recollections about many aspects of her studies including the names of her various courses, their content, the number of courses she did and the times of commencement and completion of courses. She did not retain copies of the course materials, of her assessed work, of the certificates provided by the OLI or the records of her money order payments. She retained only a few of the receipts for course payments provided by the OLI. She said that she was required to complete only 16 core courses and 5 elective courses though she conceded that the OLI brochure nominated an additional 3 core courses. She understood that this was an altered requirement since she commenced the program. There is no OLI material which supports Ms Dick’s evidence that she successfully completed 12 courses. A statement, dated 8 June 2006, from the OLI records provided information on Ms Dick’s study record. These are set out in the following table (columns 2 - 5). Column 6 gives the dates of certificates issued to Ms Dick.
course start date end
dategrade hours certificate date 311AB 1/3/04 30/3/04 J 30 20/2/05 405A 1/3/04 11/1/05 JPJ 40 15/1/05 404AB 1/3/04 4/5/04 J 40 20/2/05 401A 1/3/04 14/10/04 J 40 16/10/04 402A 1/3/04 10/3/05 J 40 19/3/05 403A 14/10/04 15/9/05 JNA 40 17/9/05 17A 14/10/04 28/2/05 JNA 30 12/6/05 501A 14/10/04 21/9/05 JPJ 65 24/9/05 502A 14/10/04 2/11/05 AW 65 ----
8. The legend of grades in that record suggests that all of these were passing grades except for 502A which was not completed. A further certificate was issued for an additional course of 304A on 6 March 2005 although that was not a course noted in the enrolment record of Ms Dick. That record reveals that five courses were undertaken at the start of the program on 1 March 2004 rather than four as nominated by Ms Dick. It also reveals that a second set of courses was commenced on 14 October 2004.
9. A statement, dated 30 May 2006, records that assessment material was received for 311AB and 404AB on 30 March 2004 and 4 May 2004, respectively. It was noted that there was a delay in processing those results because of a change in computer systems. As noted above, the certificates for those two courses were issued in 2005. No explanation was given for the apparent delay in the certification for the course 17A. A record of items of assessment for each course was also provided. It shows that competency was achieved by Ms Dick at the first attempt on many occasions and that, on other occasions, she achieved competency on the second attempt. For some courses, there are some missing items of assessment (eg 17A and 501A) and, for others, there is no record of any assessment materials having been received (eg 403A). Despite that, the OLI record shows that Ms Dick passed those courses.
Consideration
10. The 16 week period referred to in the OLI brochure extends from the commencement of Ms Dick’s study on 1 March 2004 to 20 June 2004. Her evidence was that she completed each course in turn before commencing another course. The return date for the three items of assessment in 311AB, a 30 hour course, was 30 March 2004. For 404AB, a 40 hour course, the date was 4 May 2004 for each of the two items. For 402A, a 40 hour course, three items were received by 10 June 2004 though one of these was not satisfactory and it was resubmitted on 4 March 2005. That progression of dates supports Ms Dick’s evidence that she completed courses in turn. However, no other item of assessment is recorded as having been received before 20 June 2004. Nevertheless, she was enrolled in and undertaking work in the courses 311AB, 404AB and 402A in the 16 week period to 20 June 2004. That equates with a total of 110 hours and this constitutes 78% of a full-time workload of 140 hours on the criteria provided by OLI. I am satisfied that this is the case even though she had not been graded as passing one of these courses until the resubmitted assessment was received. As I have found above, it is not necessary that success be achieved in a period when assessing the workload in that period.
11. The 16 week period after 20 June 2004 extends to 10 October 2004. Ms Dick continued to submit assessment material during that period. The three items in 401A, a 40 hour course, were received on 30 August 2004. One of these was not satisfactory and was resubmitted on 7 October 2004. The remaining items of assessment were received after 10 October 2004 and the OLI records do not enable me to make a finding that Ms Dick was enrolled in and undertaking a full-time workload between 20 June 2004 and 10 October 2004. The absence of supporting material from Ms Dick about her courses compounds that position.
12. Mr Black submitted that the approach adopted by the SSAT in calculating the workload should be adopted. There, the average weekly number of hours was calculated on the basis of a total of 140 hours over 16 weeks. This required an average of 8.75 hours per week to constitute a full-time workload. It was noted that Ms Dick was enrolled in courses which totalled 390 hours during the whole period of 69 weeks when she received youth allowance. That constituted an average of 5.65 hours per week which was less than the threshold of 6.56 hours (75% of 8.75 hours). It was Ms Dick’s evidence that she did not apply herself with the same degree of intensity throughout her enrolment in the program. She experienced personal difficulties towards the end of the first 16 weeks of her study. That is consistent with her meeting the workload requirement before 20 June 2004 but not after it and as having an overall average as calculated by the SSAT. However, as I am satisfied that she met the requirement in the period to 20 June 2004, it follows that she was qualified to receive youth allowance until that date. I am also satisfied that she did not meet that requirement from 21 June 2004 until 30 June 2005 when payments ceased.
13. Mr Black referred to letters of advice sent to Ms Dick periodically from 30 March 2004. These required her to advise Centrelink of any changes in her enrolment or her study load within 14 days of any such change. He submitted that, as she progressed from one of her initial courses to another, Ms Dick was obliged to advise Centrelink of this and that, as she failed to do so, she was in breach of her obligations under the Act. However, I am satisfied that it was appropriate for her to progress through the materials in the manner that she did and that there was no change to her workload in the first 16 weeks such that she was obliged to notify Centrelink.
14. The allowance paid in the period from 21 June 2004 until 30 June 2005 is an overpayment. This amount will need to be recalculated by the respondent. In accordance with subsection 1223(1) of the Act, this is a debt due to the Commonwealth. Accordingly, I have given consideration to whether the debts should be written off as provided for in section 1236 of the Act or whether it should be waived as provided for in subsection 1237A(1) and section 1237AAD of the Act.
Should the Debt be written off?
15. Section 1236 of the Act, in part, reads:
1236.(1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
1236.(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
(c) the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d) it is not cost effective for the Commonwealth to take action to recover the debt.
16. The only component of that provision of potential relevance in this matter is that relating to lack of capacity to repay the debt. Ms Dick is currently repaying the debt to the respondent through deductions from her income support payments. In a letter forwarded to the Tribunal after the hearing, Ms Dick advised that she would have extreme difficulty in repaying the debt raised against her and, in particular, referred to the expenses associated with the recent birth of her child. I accept that there will be some difficulties in paying off the debt. However, arrangements can be made with the respondent for the rate of repayment to be adjusted to cater for Ms Dick’s personal circumstances and, in that situation, I am reasonably satisfied that there is a capacity for the debt to be repaid albeit over a long period. In that situation, the debt should not be written off.
Waiver of Debt
17. The matters relating to waiver of a debt due to sole administrative error by the Commonwealth and to the applicant’s special circumstances arise under subsection 1237A(1) and section 1237AAD, respectively. In so far as relevant in this matter, they read:
1237A.(1) Administrative error
1237A.(1) 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.
1237A.(1A) Subsection (1) only applies if:
(a) the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or
(b) if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;
whichever is the later.
1237AAD. Waiver in special circumstances
1237AAD. 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 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.
waiver under s 1237A
18. The first element to be satisfied under sub-section 1237A(1) of the Act is that the debt must be attributable solely to an administrative error made by the Commonwealth. I am satisfied that that was not the situation in Ms Dick’s case and that the debt can not be waived on that basis.
waiver under s 1237AAD
19. For waiver of a debt under section 1237AAD of the Act, it must be the case, amongst the other requirements of the provision, that there are special circumstances other than financial hardship alone that make it desirable to waive the debt. The Act provides no guidance as to the meaning of the term “special circumstances” in that provision. In Beadle v Director-General of Social Security (1985) 7 ALD 670, the Full Federal Court stated that it was not possible to lay down precise limits or precise rules for the meaning of the term. The Court indicated that this would depend upon the circumstances of each particular case but commented that, even though the term lacks precision, it was sufficiently understood “not to require judicial gloss" (at 674). There, the Court affirmed the decision of the Tribunal (Re Beadle and Director-General of Social Security(1984) 1 AAR 362) where (at 364) the Tribunal had acknowledged that the term was "incapable of precise or exhaustive definition" and that, to be special, the circumstances "must have a particular quality of unusualness that permits them to be described as special".
20. In Groth v Secretary, Department of Social Security (1995) 40 ALD 541, Kiefel J, after referring to the Federal Court's decision in Beadle’s case, observed (at 545) that special circumstances:
“would require something to distinguish... [the].. case from others, to take it out of the usual or ordinary case. ……. It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.”
21. A matter raised by Ms Dick with the potential to contribute to her circumstances being special was her state of health. She has suffered, periodically, with problems associated with her gall bladder. A medical report, dated 12 October 2006, was provided by Dr Gary Jones, her local general practitioner. This confirmed that she had suffered from an inflamed gall bladder in 2004 and 2005. Ms Dick said that the condition had now settled and that, provided she was careful with her diet, it presented her with few difficulties.
22. Ms Dick also referred to her involvement in legal proceedings as a result of events that occurred to her in 2004. While I accept that this may have a stressful effect upon her, it does not have the character of unusualness that would take her situation out of the ordinary.
23. I am satisfied that there are no factors, either individually or taken together, in this case that enable it to be characterised as unusual or unfair and I am satisfied that there are no special circumstances in the applicant’s case that would justify waiver of the debt under section 1237AAD of the Act.
Decision
24. The Tribunal varies the decision under review by amending the overpayment period to 21 June 2004 until 30 June 2005; determines that the overpayment in that period is a debt due to the Commonwealth; and remits the matter to the respondent to recalculate the debt which arose during that period.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Fiona Kamst
Legal Research OfficerDate/s of Hearing 16 January 2007
Date of Decision 20 March 2007
The Applicant was unrepresented
For the Respondent Mr M Black, Departmental Advocate
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