Eatock and Secretary, Department of Family and Community Services
[2002] AATA 1015
•25 October 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1015
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2001/1545
GENERAL ADMINISTRATIVE DIVISION )
Re PAT EATOCK
Applicant
And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr M Griffin, Member
Date25 October 2002
PlaceSydney
Decision The decision under review is set aside and in substitution therefor the Tribunal decides that there are special circumstances (other than financial hardship alone) that make it desirable to waive the debt of $2,323.93.
[SGD] Mr M Griffin
Member
CATCHWORDS
SOCIALSECURITY – Abstudy allowance – failure to re-enrol – overpayment of allowance – waiver of debt – whether or not special circumstances exist
Student Assistance Act 1973 section 43F
Social Security Act 1991 section 1228
Secretary, Department of Social Security v Migotto (1991) 23 ALD 459
Secretary, Department of Social Security v Ellis (1997) 46 ALD 1
Beadle v Director-General of Social Security (1985) 7 ALD 670
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Re Secretary, Department of Family and Community Services and Jonauskas (2001) 65 ALD 553
Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435
REASONS FOR DECISION
25 October 2002 Mr M Griffin, Member
THE APPLICATION
This is an application by Pat Eatock (hereinafter referred to as "the Applicant") in which she seeks review of a decision of the Social Security Appeals Tribunal (hereinafter referred to as "the SSAT") made on 23 September 2001. The SSAT affirmed the decision of an authorised review officer made on 28 May 2001 to vary the decision of a Centrelink delegate of the Secretary of the Department of Family and Community Services (hereinafter referred to as "the Respondent") made on 20 December 2000. The decision of the Centrelink delegate was to raise and recover an Abstudy debt of $6,009.90 for the period 14 February 2000 – 27 June 2000. The Centrelink delegate's decision was varied by the authorised review officer so that the debt was reduced to $2,323.93.
There was no dispute between the parties that there had been an overpayment of Abstudy allowance, nor was it in dispute that the debt was properly raised and that the calculation of the amount of overpayment was correct. The Respondent made it plain that the amount in issue was $2,323.93 and not the original debt of $6.009.90. This was not disputed by the Applicant.
THE ISSUEThe issue before this Tribunal is whether the Applicant owes a debt to the Commonwealth for Abstudy allowance and if so, whether it can be written off or waived.
BACKGROUNDThe Applicant is a 64 year old Aboriginal woman. She graduated with a Bachelor of Arts degree from the Australian National University (ANU) in 1975. She lives alone in suburban Sydney. She sees her daughter regularly and her grand daughter often stays with her. In 1999 she enrolled in a three year Master of Arts by research course in history at the University of Queensland ("the University"). She surrendered the age pension and was granted Abstudy allowance for the period of study. She moved to Brisbane and commenced the course. The course involved four units of coursework and regular attendance as well as the research component. The Applicant encountered some difficulties in her dealings with her course supervisor and had some problems with the course coordinator. After six weeks of the course she did not have a supervisor. She experienced stress, consulted a doctor, was prescribed medication for depression and received counselling.
On 23 September 1999 a doctor diagnosed the Applicant as suffering "Mod severe depression" and certified her "unfit for duty" from 23 July 1999 to 23 October 1999. On 7 October 1999 a doctor from the University Health Unit diagnosed "severe depression" and recommended an "an extension on submission of assignments until December 1999, she needs to be able to return to Sydney to her supportive family in order to be able to finish this work". The Applicant returned to her Sydney address in mid-December.
The Applicant had received Faculty approval to study, for the coursework unit Community History, the Bunya gatherings of Aboriginal people in central Queensland. The proposal involved attendance at a gathering site at Baroon, near Woodford in Queensland from 26 December 1999 till 1 January 2000. The University agreed to an extension to allow her to complete this unit after the end of Semester 2, 1999. The Applicant applied for Centrelink funding to undertake this activity many weeks in advance. She received a Centrelink cheque on 24 December 1999. By that time her travel and accommodation bookings had lapsed due to non-payment and she could not attend the Bunya gathering. She resolved to try again to study the Bunya the following year.
She remained in Sydney and continued with her research using libraries, the Internet and other sources. She received enrolment forms for the next year's (2000) enrolment. She does not know if she returned the forms to the University. A Centrelink notice dated 30 December 1999 sent to her Sydney address advised that her Abstudy claim for 2000 had been approved. In early January 2000 she sent a money order for $303.70 to the University for payment of fees. She decided to remain in Sydney conducting research as there was no further coursework for her to complete except the Bunya gathering study for Community History which she intended to undertake in December 2000.
On 13 April 2000 the University wrote to the Applicant, at her previous Brisbane address, advising, in part, "As your recent results included at least one subject with a grade 3 or less, your academic performance has been reviewed…It is not proposed that your enrolment be terminated at this time, however the Director of Studies has indicated that you should be warned".
On 26 May 2000 Centrelink wrote to the Applicant requesting proof of enrolment. The Applicant contacted the University to obtain confirmation of enrolment. It was at this time she was informed by the University that she was not enrolled in the Masters course as she had failed Community History, a pre-requisite coursework subject. She made several attempts to re-enrol without success. In early July 2000 she went to the Centrelink office and surrendered the Abstudy allowance and re-applied for the age pension.
On 18 December 2000 Centrelink raised an overpayment debt of Abstudy allowance of $6,009.90 for the period 14 February 2000 to 27 June 2000. On 28 May 2001 the authorised review officer waived the amount equivalent to the notional entitlement to the age pension for the period leaving a debt of $2,323.93.
The SSAT considered the Applicant's difficulties "with respect to both her mental health and her relationship with the university, are within the range of postgraduate student experience and therefore accepts that they are not sufficiently 'unusual, uncommon or exceptional' as to justify 'special circumstances' as to allow waiver of the debt" still outstanding. The Applicant appealed to this Tribunal on 10 October 2001 for review of the SSAT decision.
THE HEARING – EVIDENCE AND SUBMISSIONSThe application was heard by this Tribunal on 9 August 2002. The Applicant was represented by Ms J Finlay of the Welfare Rights Centre. The Respondent was represented by Mr G Lozynsky, an advocate from the Advocacy and Administrative Law Team at Centrelink. The Applicant gave sworn oral evidence. There was no witness evidence.
There were tendered in evidence the Tribunal documents (the T– documents T1–T21, pp. 1-91) produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 together with the following exhibits. Exhibit A1 is the Applicant's Statement of Issues; Exhibit A2 is the Applicant's Statement of Facts and Contentions with 6 attachments; Exhibit A3 is a medical certificate of Dr G Godfrey dated 9 August 2002. Exhibit R1 is the Respondent's Statement of Issues; Exhibit R2 is the Respondent's Statement of Facts and Contentions; Exhibit R3 is letter dated 12 January 1999 with a 3 page attachment and Exhibit R4 is the University letter dated 3 February 1999 with an attachment dated 18 February 1999.
The Applicant said she enrolled in the Masters at the University because she had undertaken several history units in her Bachelor's degree and was interested in studying her family background among the Aboriginal peoples of Queensland. Her thesis topic was "Race relations in central Queensland from the Year X – 1932". She thought most research material would be situated in Queensland and she had heard of a particular academic at the University that she wanted to study under.
The Applicant described a history of difficulty in her dealings with Centrelink staff in respect of her transition from Age Pension to Abstudy culminating in being left without any income for six weeks on her initial move to Queensland. The Applicant eventually sought the assistance of her local Member of Parliament to resolve these problems (see T19).
The Applicant upon starting at the University discovered that the particular academic she wished to study with was not available for that year. She described a series of encounters with her academic supervisor and faculty staff. Exhibit A2 contains an extensive record of these encounters and of the Applicant's perception of what was said to her. Suffice to say that she perceived a negative attitude based on racial grounds from both her supervisor and other staff. The Applicant said she had a history of being challenged as to her right to be an Aboriginal person because of her appearance.
The Applicant said her physical disabilities at the time caused substantial restrictions in her mobility, such that she required use of a walking frame. Nevertheless she sought and obtained the assistance of various support organisations in attempting to deal with both Centrelink and Faculty staff. However, her situation deteriorated and she fell into serious depression and required medical treatment and counselling.
Despite these problems the Applicant continued with her studies and research plans. She said she obtained faculty approval in early August for a 3 week Bunya study trip and then sought funding approval from Centrelink in August/early September. She said that in her application to Centrelink she made it plain that she had to be at the Bunya gathering by a particular date and needed to confirm her travel and associated bookings by 14 December at the latest. She said this application was fully supported in writing by both the History Faculty and the Aboriginal Unit of the University. She said she returned to Sydney and waited for funding approval. She said nothing happened so she started ringing Centrelink. She said between 14 and 22 December 1999 she made numerous calls with little success except to be told that the funding "was being looked at". She said on 22 December 1999 during one of these calls she was advised that funding had been approved for one week only. She said she received a cheque for from Centrelink on Christmas Eve. She said by that time all bookings had lapsed and it was not possible for her to make the journey and attend the Bunya gathering.
The Applicant said Centrelink wrote to her on 22 December asking for a refund of the cheque she received 2 days later. The Applicant said she was very distressed by this whole episode.
The Applicant said that in the last week of December 1999 she received a letter from the University saying she was yet to pay the second semester 1999 fees. She said "So about 6 January 2000 I sent I believe a money order that was the equivalent of 2 semesters of fees with a covering note saying this was for the 2nd semester of 1999 and 1st semester of 2000. I have no memory of including the enrolment form and I expect I didn't. I was very stressed and all I knew is I had to pay the fees. This was a grim period of depression. I decided not to go to Queensland just to get a student card. It is not that I thought I didn't have to enrol, just that I thought I only had to get a student ID card. It was the summer break and I was stressed".
The Applicant told the Tribunal that she was unwell and depressed and decided to remain in Sydney to conduct her research using local resources. She could see no need to return to Queensland until the time of the next Bunya gathering. She said she approached the Anthropology Department of the University around this time for a supervisor for her thesis and they recommended a woman in the Northern Territory university. The Applicant contacted this woman but she could not assist. I asked the Applicant if she contacted the History Department at this time. She said "No, I was alone, depressed and felt they didn't want me around, so I continued as I had the previous year. I found out they wrote to my Brisbane address and questioned my status. I assumed it was something I could repeat. I tried to get confirmation of my enrolment. It was clear something had gone wrong. I got different stories from the University Administration and the History Department and others. I went to Hurstville and told Centrelink I was withdrawing and told them about the previous four to five weeks and that it was all too much and I would withdraw and go back on the pension. I took the initiative of terminating the Abstudy, on the papers it looks the other way but it is important that I took the initiative. I heard nothing more till the December 2000 letter about the overpayment. Then on 18 December 2000, the last business day before Christmas I got the letter about $6000.00 overpayment and the debt recovery. They destroyed my 2nd consecutive Christmas".
The Applicant said "I was suffering from stress about half way through 1999. I was on medication by then but it started earlier when I was left without money in February and then with no appropriate supervisor". I asked about her current medical condition. She said "I have back problems, diabetes, I had a coronary in 1980 and suffer angina from that, I have to use a walking frame to get around. I have glaucoma of the left eye, I suffer depression and take medication for that".
I asked the Applicant about her financial circumstances. She said she relies completely on the age pension for income. She said she is insulin dependent and takes a variety of medications for her physical conditions and her depression. She said the recent changes to pharmaceutical benefits mean she must bear her own costs of medication which amount to some $60 to $70 per fortnight. Ms Finlay said the Applicant requires cataract surgery and this will cost at least $2000. The Applicant said she requires a large amount of dental work which she will find difficult to afford. The Applicant said her last walking frame broke and she had to approach Calvary Hospital as a charity patient for a replacement. She said, "They are also giving me hydrotherapy as I have no funds to get it elsewhere".
The Applicant was questioned by Mr Lozynsky for the Respondent. She said that during her Bachelor's degree she enrolled every year and was aware of the need to enrol each year. She said from May 2000 she had a number of phone calls with the University officers about enrolment and got differing responses. She said she could handle the workload of the course, "It was the racism of the History Department that was the problem. They actually asked me if I would consider changing my research to American History, that was inappropriate. Other students told me of the racism". She was asked if she raised this problem with the Head of the History Department. She said "I had a conversation [with him], he made no attempt to find me another supervisor. There was a Koori Centre, I complained to them and they put me in contact with this woman who had failed". It was put to the Applicant that it was possible she might have misinterpreted what was said to her by her supervisor. She acknowledged the possibility but said, "Experience tells me I was right". She said, "In my mind I had postponed the field trip for a year, I thought enrolment was for coursework but not for research". It was put to her that she failed to formally advise the University of her change of address. She said, "I told them during term my address was Brisbane but outside that it was Sydney. It was an oversight that I did not go to the main administration on the day I left". She was questioned at length about the Abstudy claim form (T4) and how she completed it. She said she did not notice the entry which reads "provide proof of enrolment" and said, "Anyway I considered this as a continuation of the previous enrolment [proof of which] was provided earlier".
Mr Lozynsky submitted that the decision to waive the amount of debt equivalent to the notional entitlement to the age pension pursuant to section 1237 AAD of the Social Security Act 1991 was incorrect. He further submitted that the SSAT decision on this point was correct and it was really a question of "special circumstances" under the relevant legislation namely the Student Assistance Act 1973 . He said "The SSAT has affirmed that, and we do not press the original figure".
THE LEGISLATIONSection 1228 of the Social Security Act 1991 ("the Act") provides:
"Overpayments arising under other Acts and schemes
1228(1) If:(a) an amount has been paid to a person by way of a payment or payments to which subsection (2) applies; and
(b) the amount should not have been paid; and
(c) the person to whom the amount was paid is receiving a social security payment under this Act; and
(d) the person is qualified for the social security payment under this Act and the social security payment is payable to the person;
the amount is an overpayment that is recoverable by the Commonwealth by means of deductions.
Note: for deductions see section 1231.
1228(2) This subsection applies to:
…(c) a payment under:
…
(iii) the ABSTUDY Tertiary Scheme (to the extent that it applies to full-time students); or
…"
Pursuant to section 1228(1) of the Act, any overpayment can be recovered by way of deductions from the Applicant's age pension.
In Secretary, Department of Social Security v Migotto (1991) 23 ALD 459, Heerey J considered the recovery of overpayments of Austudy, made under the Student Assistance Act 1973, from M's sickness benefits received pursuant to the Social Security Act 1947. At the time of the Administrative Appeals Tribunal's decision, section 246(2) of the Social Security Act 1947 authorised the recovery, by deductions from a current pension, allowance or benefit, of any amount paid to a person "under a prescribed educational scheme that should not have been paid". The Austudy scheme was a "prescribed educational scheme". The Administrative Appeals Tribunal had determined that the Secretary had power, under section 251(1) of the Social Security Act to waive recovery of the overpayment. Heerey J said at page 460:
"In the present case the debt admittedly owed by the respondent to the Commonwealth did not answer the statutory description. It was not "payable…under or as a result of" the Scoial Security Act. If the Commonwealth were to proceed in a court for the recovery of this debt, its statement of claim would not plead, as an element of its cause of action, any entitlement under the Social Security Act.
The Commonwealth has chosen to avail itself of a means of recovery provided by the Social Security Act viz s 246(2)(c) . But I do not think that means the debt itself can be said to be "payable…under or as a result of" the Social Security Act. Section 251 (1)(b)(i) deals with waiver of the right to recover debts of the stipulated kind by any means at all – whether deduction from other social security payments, action in the courts or any other means. It is not in my view concerned with a waiver of any particular means of recovery.
Further support for this view is provided by s 251(4), which is a deeming provision. It is directed to a very limited category of debt not arising or payable under the Social Security Act and provides that, for the purpose of subs (1), such debts are to be treated as if they did so arise or were so payable. In my opinion, the limited terms of subs(4) point against a conclusion that the power to waive contained in s 251(1)(b) extends to all debts due to the Commonwealth, or to all debts which the Commonwealth seeks to recover by deduction from payments under the Social Security Act
…The logical place to confer power to waive Austudy overpayments is with those who have the responsibility of administering that scheme. This in fact has been done by s 31C(1) of the Student Assistance Act".
Following this authority, the relevant provision of the Student Assistance Act 1973 is section 43F which provides:
"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; 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.
Note: Section 43 allows the Secretary to write off a debt on behalf of the Commonwealth."
FINDINGS OF FACT AND REASONS
I have given careful consideration to the written and oral evidence provided by the parties, the legislation and the documentary material on file, as well as the written and oral submissions made by the advocates.
The issue to be decided is whether or not the Applicant's debt should be waived pursuant to section 43F of the Student Assistance Act. In Secretary, Department of Social Security v Ellis (1997) 46 ALD 1, Carr J after considering Beadle v Director-General of Social Security (1985) 7 ALD 670 and Groth v Secretary, Department of Social Security (1995) 40 ALD 541, both of which dealt with the phrase "special circumstances" in similar provisions said, at p. 4:
"It [the tribunal] recognised that special circumstances meant, on the authorities, circumstances which were out of the ordinary. Once it got to that stage, the tribunal can be seen to be engaged in a purely factual exercise".
In Beadle (supra) the Full Federal Court said, at 674:
"It would depend upon the circumstances of the particular case whether these constituted special circumstances. We do not think it is possible to lay down precise limits or precise rules. The matter is one for the Director-General bearing in mind the purpose for which the power is given. The phrase 'special circumstances', although lacking precision, is sufficiently understood in our view not to require judicial gloss".
In Groth (supra) Kiefel J , after referring to Beadle (supra) said, at 545
"…for present purposes it is sufficient to observe that it would require something to distinguish Mr Groth's 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".
The first factor for determination is whether or not the Applicant "knowingly" made a false statement or false representation or failed or omitted to comply with the relevant requirements in respect of her Abstudy allowance. The operative word is "knowingly". In Re Secretary, Department of Family and Community Services and Jonauskas (2001) 65 ALD 553 Deputy President Forgie considered the meaning of the word "knowingly" in the context of section 1237AAD of the Social Security Act 1991 and concluded that it meant actual knowledge as distinct from constructive knowledge or recklessness. In Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435 at 445, Deputy President Forgie said:
"There is nothing in s 1237AAD which suggests that the word 'knowingly' should be given any meaning other than that a person has actual knowledge, rather than constructive knowledge, that he or she is making a false statement or representaton or that he or she is failing or omitting to comply with a provision of the Act. That actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement or the act or omission".
It seems to me that section 43F of the Student Assistance Act 1973 should be read in the same way and that the issue is the actual knowledge of the Applicant.
The Applicant gave sworn oral testimony. She was cross-examined by the Respondent at length. I had the benefit of observing her give her evidence over a period of some hours. She gave her evidence in a calm and measured manner. She was forthright but reasonably conceded relevant matters in answers to questions from the Respondent. I found the Applicant's evidence compelling and I am satisfied she is a witness of truth. Having regard to the medical and other evidence of her depression at the relevant time, the circumstances surrounding her failed field trip to study the Bunya gatherings, her intention to complete that study the following year, her payment of fees and her reasons for remaining in Sydney, I am satisfied the debt did not result wholly or partly from the Applicant knowingly making a false statement or false representation or failing or omitting to comply with the Abstudy requirements.
Which brings me to consideration of the "special circumstances" factor. It is relevant to note that these words in the section are immediately followed in brackets by the words "other than financial hardship alone". The SSAT decided the Applicant's difficulties were "within the range of postgraduate experience and therefore accepts they are not sufficiently unusual, uncommon or exceptional". There is no evidence before me of the range of postgraduate experience and even if there was, I am not sure it necessarily follows that falling within a range of experience thereby excludes a set of circumstances from being unusual, uncommon or exceptional. A range of experience necessarily comprehends a compass or scope of experience with extremes at the ends of the range. It is reasonable to assume that even suicidal ideation and psychotic episodes fall within the range of postgraduate experience and by definition they are unusual, uncommon or exceptional. What must be considered are the particular circumstances of the Applicant viewed in context.
The Applicant is a 64 year old Aboriginal woman. She has a Bachelor's degree in history and she wanted to undertake higher level research in the history of her own people in central Queensland. She suffers from considerable health problems. Nevertheless, she sought and obtained approval to enrol in a Master's degree at the University. From the outset she encountered problems in her dealings with Centrelink, which led to her being financially destitute soon after her arrival in Brisbane to commence her studies. She was able to resolve these problems only after the intervention of her Federal MP. The academic she wanted to study under at the University was not available and she soon encountered relationship problems with the supervisor provided by the History Department. The Applicant reasonably conceded to the Respondent that it was possible she misinterpreted his remarks to her but she felt, based on 64 years of experience of racial prejudice, that she was right. My consideration of her written records of these remarks (Exhibit A2) and the fact that I have not been presented with evidence to the contrary, leads me to conclude that her interpretation was not unreasonable. These experiences resulted in stress and the Applicant fell into serious depression. She sought medical assistance and was diagnosed and treated for depression. Indeed, the doctors saw fit to write to the faculty seeking extensions for submission of her work and recommending that she return to her supportive family environment. Despite her complaints to the History Department at the University and the Koori Centre, the Applicant was not assigned another supervisor and thus was without academic supervision from mid-way in the 1st semester of 1999.
Nevertheless, the Applicant continued with her studies and completed all of the coursework requirements except for the proposed field study trip to the Bunya gatherings. She obtained faculty approval for the proposal and made a documented application for funding to Centrelink at least three months before the proposed trip. She made it plain that approval was necessary by 14 December 1999 to secure her travel and associated bookings. Despite the three month lead time given for approval, Centrelink did not make the decision on funding until 22 December 1999 and sent the cheque on Christmas Eve, by which time it was too late. These events exacerbated the Applicant's depression and she returned to Sydney and decided not to return to Queensland just to conduct research. It was her intention to do the field trip to the Bunya gatherings at the same time the following year. She cannot confirm if she sent the enrolment forms to the University but she did send payment with a covering letter for fees for the outstanding 2nd semester of 1999 and the 1st semester of 2002. The University wrote to her in April 2000 warning she may be refused enrolment if there was further unsatisfactory progress. It is significant in view of her evidence that she exchanged a number of calls with the University staff who gave her conflicting advice about her enrolment status. The Applicant remained in Sydney conducting her research. In May 2000 she received a request of proof of enrolment from the Respondent, she then had a series of contradictory discussions with the University staff and eventually gave up in frustration and surrendered her Abstudy allowance and asked to return to the age pension.
The Applicant lives alone and is entirely dependent upon the age pension for income. She suffers from substantial ill-health including depression, glaucoma, angina and insulin dependent diabetes and has continuing significant medical expenditure.
Having regard to the entirety of the evidence and their context, I am satisfied the Applicant's circumstances constitute special circumstances that make it desirable to waive this debt pursuant to section 43F of the Student Assistance Act 1973.
Accordingly the decision under review is set aside and in substitution therefor the Tribunal decides that there are special circumstances (other than financial hardship alone) that make it desirable to waive the debt of $2,323.93.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Griffin, Member
Signed: H Sim .....................................................................................
AssociateDate of Hearing 9 August 2002
Date of Decision 25 October 2002
Representative for the Applicant Ms Jackie Finlay
Representative for the Respondent Mr George Lozynsky
1
1
0