DONNA NINA TOFT and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
[2010] AATA 650
•30 August 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 650
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/5577
GENERAL ADMINISTRATIVE DIVISION ) Re DONNA NINA TOFT Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Senior Member R W Dunne Date30 August 2010
PlaceAdelaide
Decision The Tribunal sets aside the decision under review.
..............................................
R W DUNNE
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – entitlement to Austudy Allowance – whether “undertaking qualifying study” – whether “full-time student” – raising and recovery of debt due to overpayment of Austudy Allowance – debt due to the Commonwealth – waiver of right to recover debt – waiver in special circumstances – whether notional entitlement to Newstart Allowance – write-off of debt – decision under review set aside.
Social Security Act 1991(Cth) ss 568, 569(1), 569A, 569C, 569H, 1223(1), 1237AAD
Social Security (Administration) Act 1999 (Cth) ss 68(2), 94(1)
Re Rafty and Secretary, Department of Family and Community Services [2002] AATA 1299
Re Secretary, Department of Family and Community Services and Machan [2001] AATA 434
Secretary, Department of Social Security v Knight (1996) 72 FCR 115
Re Sara and Secretary, Department of Families, Community Service and Indigenous Affairs [2006] AATA 708
Re Schulze and Secretary, Department of Family and Community Services [2004] AATA 705 Re Secretary, Department of Family and Community Services and Varhegyi [2005] AATA 635Oberhardt v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1923
REASONS FOR DECISION
30 August 2010 Senior Member R W Dunne introduction
1. The applicant (Ms Donna Toft) is studying for a Bachelor of Ecotourism degree at Flinders University, which she commenced in 2007. She was paid Austudy Allowance (or Austudy payment) (“Austudy”) by the respondent (“Centrelink”) as a full-time student from 19 February 2007. On 8 June 2009, her Austudy was cancelled because Centrelink determined that she was no longer a full-time student. On 14 August 2009, a Centrelink officer decided to raise and recover an overpayment of Austudy amounting to $2,266.53 for the period from 1 April 2009 to 8 June 2009. Centrelink’s decision was affirmed by an Authorised Review Officer and the Social Security Appeals Tribunal (“SSAT”). Ms Toft has applied to this Tribunal for review of the decision of the SSAT.
2. At the hearing, Ms Toft was self-represented and Ms Julie Edwards (from Centrelink Advocacy Branch) appeared on behalf of the respondent. The Tribunal received into evidence the T documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, together with the following exhibits:
·letter from Flinders University dated 1 October 2009 with attached results overview (Exhibit A1);
·extract from Flinders University website entitled “What is full-time study or EFTSL” (Exhibit R2);
·extract from Flinders University website entitled “2010 Topic Search Results” (Exhibit R3);
·unofficial transcript of applicant’s topics and results for years of study undertaken (Exhibit R4).
issues for the tribunal
3. The issues for the Tribunal are:
(a)Has the applicant been overpaid Austudy of $2,266.53 in the period 1 April 2009 to 8 June 2009?
(b) If there has been an overpayment of Austudy, are there grounds to waive or write-off all or part of the overpayment?
legislation
4. A person’s entitlement to a social security payment arises under the Social Security Act 1991 (“Act”) and the Social Security (Administration) Act 1999 (“Administration Act”). Under s 94(1) of the Administration Act, if a person who is receiving a social security payment is given a notice under s 68(2) and the notice requires the person to inform Centrelink of the occurrence of an event or change of circumstances within a specified period, if the person does not inform Centrelink accordingly and ceases to be qualified for the social security payment, the payment is cancelled. If a social security payment is made and a person who obtains the benefit of the payment was not entitled to obtain that benefit, the amount of the payment is a debt due to the Commonwealth by the person (s 1223(1) of the Act).
5. Under s 568 of the Act, amongst other things, a person needs to satisfy an “activity test” to qualify for Austudy. Section 569 goes on to state that a person satisfies the activity test if he or she is “undertaking qualifying study”. This expression is defined in s 569A of the Act, which provides:
” 569A Undertaking qualifying study
For the purposes of this Part, a person is undertaking qualifying study if:
(a) the person:
(i)is enrolled in a course of education at an educational institution; or
(ii)was enrolled in the course and satisfies the Secretary that he or she intends, and has (since no longer being enrolled) always intended, to re-enrol in the course when re-enrolments in the course are next accepted; or
(iii)was enrolled in the course and satisfies the Secretary that he or she intends, and has (since no longer being enrolled) always intended, to enrol in another course of education (at the same or a different educational institution) when enrolments in the other course are next accepted; and
(b)the course in which the person is enrolled, or intends to enrol, is an approved course of education or study (see section 569B); and
(c)the person is a full-time student or a concessional study-load student in respect of that course (see sections 569C and 569D); and
(d) the person satisfies the progress rules (see sections 569G and 569H).”
6. Section 569A refers to the expression “full-time student” in paragraph (c). That expression is defined in s 569C of the Act, which reads:
“569C Full-time students
For the purposes of this Subdivision, a person is a full-time student in respect of a course if:
(a)in the case of a person who is enrolled in the course for a particular study period (such as, for example, a semester)—the person is undertaking at least three quarters of the normal amount of full-time study in respect of the course for that period; or
(b)in the case of a person who intends to enrol in the course for a particular study period—the person intends to undertake at least three quarters of the normal amount of full-time study in respect of the course for that period.”
7. Section 1237AAD of the Act allows for the waiver of the right to recover a debt, arising from the overpayment of a social security benefit, in certain circumstances. Section 1237AAD reads as follows:
“1237AAD Waiver in special circumstances
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 a false representation; or
(ii)failing or omitting to comply with a provision of this Act, the Administration 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.”
background and evidence of applicant
8. The background facts of this case are largely not in dispute. When Ms Toft’s Austudy was cancelled on 8 June 2009, she started being paid and is now receiving Newstart Allowance. At Flinders University, studying for her Bachelor of Ecotourism degree, she commenced the 2009 academic year, in Semester 1, studying four subjects – Earth and Environment 1 (or Earth Sciences) (EASC 1101), Ecotourism 3 Part A (ECOT 3101A), Ecotourism Practicum 2 (ECOT 3001) and Genetics and Biology (BIOL 2121). Three of those subjects - Earth and Environment 1, Ecotourism 3 Part A and Genetics and Biology - contributed to her study load for Austudy purposes. On 31 March 2009, she withdrew from Genetics and Biology. As a result, based on the values given to those subjects by the University, it appears she dropped below the threshold for “full-time study”. By various notices (copies of which appear in Exhibit R1), Centrelink advised Ms Toft of the need to notify them if there were any changes to her situation, such as a change in study load or if she stopped studying. She failed to notify Centrelink that she had withdrawn from one Semester 1 subject. As a result, Centrelink raised a debt of $2,266.53 relating to overpayment of Austudy for the period from 1 April 2009 to 8 June 2009.
9. Ms Toft’s evidence was that she had been on Austudy and was unaware that she had fallen below the full-time study threshold. She only learnt about this when her Austudy payments ceased, some 69 days after her withdrawal from Genetics and Biology. Had she known that she had, in fact, fallen below the threshold when she withdrew she would have applied for Newstart Allowance straight away. She said Ecotourism Practicum 2 was a compulsory subject, but it appears it did not count towards her study load. She was not aware that it did not count. She had received the notice from Centrelink dated 19 December 2008 (Exhibit R1, T3, pages 52-54) requiring her to contact Centrelink if her circumstances changed. She had also received a similar notice dated 16 March 2009. She thought the University would advise Centrelink that she had withdrawn from Genetics and Biology in March 2009.
10. As to her study subjects, she had undertaken a placement in Ecotourism Practicum 1 in July 2008. She was also to undertake Ecotourism Practicum 2 at Rawnsley Park in December 2008, but the placement there had fallen through. In March 2009, her University assignment was to report on the reasons why the placement had fallen through. She had attended compulsory lectures in Ecotourism Practicum 2 in Semester 1, 2009 and was also attending lectures in that subject in 2010. She said she had to attend lectures and go to the Practicum as part of the Ecotourism course. She referred to the letter from Associate Professor Sonia Kleindorfer at the University dated 1 October 2009 (Exhibit A1) which reads:
“I am writing this letter on behalf of Ecotourism student Donna Toft.
In Semester 1 2009, it was compulsory for Ecotourism students to attend the subject ECOT 3001 talks every Wednesday at 11am. Attendance was required at 80% of lectures otherwise students would risk failing the subject.”
Ms Toft said that she was enrolled for Ecotourism Practicum 2 in Semester 1, 2009 but she could not understand why her enrolment did not appear in her unofficial transcript (Exhibit R4).
consideration
Has the applicant been overpaid Austudy of $2,266.53 in the period 1 April 2009 to 8 June 2009?
11. The qualification for Austudy is contained in s 568 of the Act. To qualify, Ms Toft must be “undertaking qualifying study”, she must be a person of Austudy age and she must be an Australian resident. The respondent does not dispute that the latter two requirements are satisfied. Under s 569A, to be “undertaking qualifying study”, Ms Toft must be enrolled in a course of education at an educational institution, the course must be an approved course of education or study and she must satisfy the progress rules in s 569H of the Act. Again, the respondent does not dispute that these requirements are satisfied. However, what is in dispute is whether, as required by s 569A(c), she was a full-time student in respect of the course in which she was enrolled.
12. Under s 569C of the Act, a person is a full-time student in respect of a course if the person is enrolled in the course for a particular study period (such as, for example, a Semester) and the person is undertaking at least three-quarters of the normal amount of full-time study in respect of the course for that period.
13. For the respondent, Ms Edwards contended that the applicant was not a full-time student during the period 1 April 2009 to 8 June 2009. She did less than three-quarters of the normal amount of full-time study in the 2009 academic year, after 1 April 2009. The Equivalent Full-time Student Load (“EFTSL”) values for the subjects Ms Toft enrolled for in Semester 1, 2009 were Ecotourism Practicum 2 (0.08333), Earth and Environment 1 (0.125), Ecotourism 3 Part A (0.08333) and Genetics and Biology (0.166). After her withdrawal from Genetics and Biology, the EFTSL values for the two remaining subjects that contributed to her study load for Austudy purposes in Semester 1, 2009 totalled 0.208 (Exhibit R1, T3, page 44). The normal full-time load for Ms Toft’s course was 0.5 per Semester and three-quarters of this figure was 0.375 per Semester. Her EFTSL of 0.208 did not, therefore, exceed the 0.375 study load requirement in Semester 1.
14. In my view, there is a difficulty with Ms Edwards’ contention. It was Ms Toft’s evidence, expressed in strong terms, that she was enrolled for Ecotourism Practicum 2 in Semester 1, 2009, notwithstanding that her enrolment did not appear in her unofficial transcript (Exhibit R4). Like the evidence she gave before the SSAT, she spoke in an open and frank manner before me and I had no reason to doubt that she was speaking truthfully. The letter she referred me to from Associate Professor Sonia Kleindorfer at the University clearly supported the evidence she gave. In the circumstances, I accept that, like her enrolments in 2008 and 2010, Ms Toft was also enrolled in Ecotourism Practicum 2 in Semester 1, 2009. However, even based on this finding, her total EFTSL values for Semester 1, 2009, including Ecotourism Practicum 2 with a value of 0.0833 extracted from Exhibit R3, would only become 0.29166. This would still be less than the three-quarters requirement for Semester 1, 2009 of 0.375.
15. It has been held that the requirement for three-quarters of the normal amount of full-time study must be calculated in respect of each Semester; it cannot be averaged over the length of the whole course of study: see Re Rafty and Secretary, Department of Family and Community Services [2002] AATA 1299. However, I have examined Exhibits R3 and R4 carefully. What appears clear from the material available from Flinders University is that the particular study period for which Ms Toft was enrolled was the academic year 2009. As was the case in Re Secretary, Department of Family and Community Services and Machan [2001] AATA 434 at paragraph 14, the words “(such as, for example, a semester)” in s 569C(a), which is the successor to s 541B(1)(b)(i) referred to in Re Machan, are just that, namely, an example. Ms Toft’s course required her to participate in subjects which were Semester based. However, irrespective of the length of time required to complete a subject, the results were annual and re-enrolment was for the academic year. What is said in Exhibit R2 (headed, “What is full time study or EFTSL?”), which appears on the Flinders University website, is pertinent. It relevantly says:
“A normal year’s work by a full-time student is 36 units of study. Awards are structured around this principle and student contributions and tuition fees are calculated on the basis that 36 units represents a standard full-time load. A standard load allows a student to perform well in studies, without dispersing their efforts over too many topics.
…
An Equivalent Full-time Student Load (EFTSL) is also used as a measure of the study load. At Flinders University, 1 EFTSL is equivalent to 36 units.
…”
It is clear that a normal year’s work by a full-time student is 36 units of study. In other words, 36 units is an annual value that enables the topic (or unit) EFTSL value to be calculated. There is nothing which necessarily equates the calculation of the standard student load with Semester periods. Adopting EFTSL values for units in which Ms Toft was enrolled in the 2009 academic year, the following aggregate results:
Subject Unit Value EFTSL Value Ecotourism Practicum 2 3.0 0.0833 Earth and Environment 1 4.5 0.1250 Ecotourism 3 Part A 3.0 0.0833 An Introduction to Aboriginal Studies 4.5 0.1250 Ecotourism 3 Part B 3.0 0.0833 Environment, Economy and Culture 4.5 0.1250 Business Planning for Projects 6.0 0.1667 Aggregate 0.7916
16. On the basis of the above unit EFTSL values, the aggregate EFTSL value is 0.7916 or 79.16 percent of the normal full-time load for Ms Toft’s course. In these circumstances, her workload in the 2009 academic year exceeds the three-quarters workload requirement set out in s 569C(a) of the Act. As a full-time student in the 2009 academic year, she satisfies the activity test in s 568A of the Act to qualify for Austudy in the period subsequent to 31 March 2009, when she withdrew from Genetics and Biology. There is, therefore, no overpayment of Austudy during the period 1 April 2009 to 8 June 2009 and no debt due to the Commonwealth by virtue of s 1223(1) of the Act. In other words, Ms Toft was entitled to obtain the benefit of the Austudy payments that she received during Semester 1, 2009.
17. Although there may be some question as to whether the approach taken by me above in applying Re Machan is the appropriate one, the beneficial nature of the Act, which has been referred to by Tribunals and Courts on numerous occasions, I believe requires me to do so. For example, that beneficial nature was emphasised by Tamberlin J in Secretary, Department of Social Security v Knight (1996) 72 FCR 115, when he said (at page 122):
“The Social Security Act 1991 is beneficial legislation par excellence. It is designed to assist the needy and the disadvantaged. As Isaacs J pointed in Bull v Attorney-General for New South Wales at 384, after referring to the Crown Lands Act as being remedial in character, said:
‘ ... this is a remedial Act, and therefore, if any ambiguity existed, like all such Acts should be construed beneficially ... This means, of course, not that the true signification of the provision should be strained or exceeded, but that it could be construed so as to give the fullest relief which the fair meaning of its language will allow.’
Ambiguous provisions are to be interpreted in a manner favourable to those who are to benefit from the legislation. [See Zangzinchai v Milanta (1994) 53 FCR 35 at 42-43.)”
18. As I have found that there has been no overpayment of Austudy in the period 1 April 2009 to 8 June 2009, there is no need for me to consider any ground to waive the overpayment under s 1237AAD of the Act. However, I note that, in the course of its decision, the SSAT made brief reference to the concept of “notional entitlement” in the context of the discretion for special circumstances in s 1237AAD. In Re Sara and Secretary, Department of Families, Community Service and Indigenous Affairs [2006] AATA 708, Senior Member M Carstairs referred to the decision of Deputy President D Jarvis in Re Schulze and Secretary, Department of Family and Community Services [2004] AATA 705 and the decision of Deputy President S Forgie in Re Secretary, Department of Family and Community Services and Varhegyi [2005] AATA 635. At paragraph 30 of her decision, Senior Member Carstairs said:
“However, I do not understand either Deputy President in these decisions to be stating that there are no circumstances in which notional entitlement can be considered in the context of the discretion for special circumstances. There are, after all, no fetters on this discretion, except as expressed in s 1237AAD itself."
The view expressed by Senior Member Carstairs in Re Sara has been further reinforced in the Federal Court by Spender J in Oberhardt v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1923. At paragraphs 62-64 of his decision, the learned Judge said:
“62 The words in s 1237AAD(b) should not be fettered, or narrowed, in the manner argued for by the respondent and accepted by the Tribunal in this case.
63 The view reflected by the Tribunal in Lyster, Huynh, Dobbie, Sara, and QX2006/1 referred to above, to the effect that notional entitlement is not necessarily excluded in considering whether ‘special circumstances’ exist, for the purposes of s 1237AAD, is correct.
64 It follows that, in my view, notional entitlement should not be excluded from the range of available relevant considerations in deciding whether there are ‘special circumstances’ to waive a debt under s 1237AAD.”
conclusion
19. As there has been no overpayment during the relevant period, Ms Toft is entitled to obtain the benefit of the Austudy payments that she received during Semester 1, 2009.
decision
20. The decision under review is set aside and the matter is remitted to the respondent to be dealt with in accordance with the above reasons.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
Signed: .................J Coulthard........................................
AssociateDate of Hearing 13 July 2010
Date of Decision 30 August 2010
Advocate the Applicant Self-representedAdvocate for the Respondent Ms J Edwards
Centrelink Advocacy Branch
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