Elkin and Department of Employment, Training and Youth Affairs
[2000] AATA 537
•3 July 2000
DECISION AND REASONS FOR DECISION [2000] AATA 537
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/969
GENERAL ADMINISTRATIVE DIVISION )
Re RACHEL ELKIN
Applicant
And SECRETARY, DEPARTMENT OF EMPLOYMENT, TRAINING AND YOUTH AFFAIRS
Respondent
DECISION
Tribunal DR J D CAMPBELL
Date3 July 2000
PlaceSydney
Decision The decision under review is affirmed
(Sgd) Dr J D Campbell ………..................................
Member
CATCHWORDS
Austudy – Semester work load – overpayment – debt – waiver – administrative error – special circumstances.
Student and Youth Assistance Act 1973, ss287, 288, 289, 290, 290C
Austudy Regulations 33, 34, 36, 109, 110, 12C, 12E
Re Beadle and Director General of Social Security (1984) 6 ALD 1
REASONS FOR DECISION
DR J D CAMPBELL
Ms Rachel Elkin ("the Applicant") in this matter seeks a review of the decision of the Social Security Appeals Tribunal dated 17 May 1999 which affirmed a decision of an authorised review officer dated 18 June 1998. This latter decision affirmed the decision dated 19 March 1998, made by a Centrelink delegate of the Secretary, Department of Employment, Training and Youth Affairs ("the Respondent") to raise and recover a debt, being an overpayment of Austudy amounting to $8350.11.
A hearing was held before the Tribunal at Coffs Harbour on 7 March 2000, at which the self represented Applicant, assisted by her partner Mr Metcalf, gave evidence. The Respondent was represented by Ms Maurer, a solicitor from the Australian Government Solicitors.
The following written material was placed in evidence before the Tribunal;
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 T1 – T37, pp1-110
Medical Report of Dr Budd regarding Josh Metcalf dated 25 November 1997 Exhibit A1
Medical Report of Dr Cross regarding Applicant dated 20 September 1999 Exhibit A2
Report from Mr P Luckie re Applicant dated 3 March 2000 Exhibit A3
Applicant's Statement of Facts and Contentions dated 1 March 2000 Exhibit A4
Letter from DETYA re Applicant partner's CES records dated 23 February 2000 Exhibit R1
Respondent's Statement of Facts and Contentions dated 22 February 2000 Exhibit R2
issues
The relevant issues in this matter are:
1.whether the Applicant was a "full-time student" during second semester 1997 within the meaning of Regulation 35 of the AUSTUDY Regulations.
(a)whether the applicant falls within the exception in Regulation 36 of the AUSTUDY Regulations; and
2.whether the Applicant received an AUSTUDY overpayment for the second semester 1997 recoverable under the Student and Youth Assistance Act 1973.
(b)whether any AUSTUDY overpayment should be written off under section 287 Student and Youth Assistance Act 1973; and
(c)whether the amount can be waived under either section 289 (1) or section 290C Student and Youth Assistance Act 1973.
legislation
The relevant legislation in this matter is the Student and Youth Assistance Act 1973 ("the Act") and in particular sections 287, 288, 289, 290, 290(c) and Regulations 12C, 12E, 33, 34, 35, 36, 109, 110
backgroundThe Applicant was enrolled in an external associate degree in law (paralegal studies) at Lismore Southern Cross University in 1977. This course is a designated course for the higher education contribution scheme under subsection 34(1) of the Higher Education Funding Act 1988. On 14 March 1997, the Applicant lodged an application for Austudy, in 1997 (T3, p13). Following assessment she was paid Austudy for both semesters in 1997.
A tertiary enrolment check referral report was sent by Southern Cross University to the Applicant on 1 November 1997 advising that the higher education contribution for semester two was 0.250 (T12, p46). On 15 March 1995 the Respondent reassessed the Applicants entitlement to Austudy for semester two of 1997 on the basis of work load and determined that the Applicant was not entitled to Austudy for Semester two, 1997. The Respondent raised, as a result of an overpayment, a debt of $8350.11, which was due and payable by the Applicant.
The Applicant sought review of this decision on 6 May 1998, and on 18 June 1998 the Respondent affirmed the decision that the Applicant was not eligible to receive Austudy after 13 June 1997 (T23, p65). Following an appeal by the Applicant to the Social Security Appeals Tribunal ("the SSAT"), the SSAT affirmed the decision on 17 May 1999 (T2, p3).
evidence
ms elkinThe Applicant told the Tribunal that she was born on 25 November 1976, and that she and her partner were caring for four children, aged ten, five, three, one, of which the elder two attended school. The Applicant indicated that at the time of the hearing she was currently undertaking full time study in the final year of her course and that she was receiving family allowance. There had been no further Austudy payments since 1997. The Applicant also indicated that her partner, Mr Metcalf, had been working as a labourer on building projects in 1999 and 2000.
In relation to her partner, the Applicant stated he left work in February 1997 to look after the family. On 8 May 1997 the Applicant's partner did register with the Commonwealth Employment Service for work and he regularly checked in to see if work was available, but any records relating to this activity have been lost. She stated that her partner was educated to year ten and the unemployment was high in this area in the second half of 1997. She stated that the only work her partner did in this period was a two day episode with a Mr P Luckie.
The Applicant told the Tribunal that she had continued with her studies on a part-time basis in 1998 and then on a full time basis in 1999 and 2000. During the second half of 1997, she was not looking for employment for herself, and she took no steps to notify the funding authority about her work load, for she did not even think about Austudy in that context.
Following the birth of the second youngest child, Josh, in February 1997, the Applicant stated that there had been a number of medical problems in his development, including gastro-oesophageal reflux, and a possibility of some left sided renal reflux. The Applicant tendered a report from Dr Budd, a consultant paediatrician, dated 25 November 1997, which detailed these issues and concluded that he had last seen Josh on 29 September 1997 at the age of eight months; and he was clinically very well (Exhibit A1). The Applicant stated that some remaining urinary problems continue in relation to Josh.
In relation to the financial circumstances of the family, the Applicant detailed debts of $5,600 (HECS), $5,200 (car) and outgoings for rent ($100 per week), a washing machine and life assurance payments as well as normal household weekly expenses. Income on a yearly basis consists of $17,000 (partner), $12,000 (family payment and parenting allowance) and $500 (eldest child).
submissionsThe Applicant contended that the circumstances of baby Josh's birth and developmental difficulties led to her poor performance in the first semester in 1997, and that failure of a pre-requisite subject in the first semester led to her diminished work load in the second semester 1997. The events which followed, including the Austudy overpayment, were a consequence of a failure to notify arising from a lack of understanding. It is the Applicant's contention that the debt which arose as a result of the Austudy overpayment was due to an honest mistake and that the debt should be waived because of special circumstances, which in her opinion were:
the financial circumstances of the family; and
the medical impairments suffered by her and her son Josh; and
the concept of notional payment, ie if the family was not receiving Austudy at the time, they would have been receiving some other form of social security benefit (eg Newstart with family payment and parenting allowance).
The Respondent contended that the overpayment had occurred directly as a consequence of the Applicant failing to notify the Respondent of a diminished work load in the second semester 1997, and that any overpayment which resulted was a debt due and payable by the Applicant. The Respondent argued that it mattered not that the issue arose as a consequence of an honest mistake, for clearly in this matter the Applicant should have taken the positive step of informing the Respondent of a diminished work load for the second semester 1997.
In relation to the issue of waiver, the Respondent contended that when the circumstances nominated by the Applicant are taken singularly or together they do not constitute a set of circumstances which could be described as special.
considerations and findingsThe Tribunal, having detailed the evidence earlier in this decision, makes the following findings of fact:
the Applicant was enrolled in a full-time external course of an Associate degree in law (paralegal studies) at Southern Cross University, Lismore in 1997; and
the Applicant applied for and was granted the Austudy on the understanding that she was a full-time student for the two semesters in 1997; and
as a consequent of medical difficulties associated with the rearing of a new born son, Josh, in February 1997, the Applicant failed a subject in semester one; the failed subject was a pre-requisite subject for some subjects in semester two, and as a consequence the Applicant had a work load of 0.250 instead of 0.500 for the second semester; and
the son, Josh, did have developmental difficulties associated with gastro-oesphageal reflux and urinary reflux on the left side, a condition which is still causing some concern; and
the Applicant failed to notify the Respondent of a diminished work load in semester two, 1997; and
the Applicant has had and continues to be treated for depression, which is responding to medication.
While the Tribunal notes that there was no disagreement between the parties as to the question of overpayment and raising of a debt of $8350.11 owed and payable by the Applicant, the Tribunal briefly outlines as to how the debt was established. Regulations 34 and 35 made pursuant to the Act provide for:
"34(1) A tertiary student must study full time.
(2)to be a full time student, a student must be enrolled in and undertake at least three quarters of the normal amount of full time work for a period a set out in regulation 35.
(3)a student is not full time in a period of the amount of work of the course that he or she is undertaking in , or is enrolled in for , that period is less than three quarters of the normal amount of full time work for that period.
35(1) if a course is a designated course for the Higher Education Contribution
Scheme (called HECS) under subsection 34(1) of the Higher Education Funding
Act 1998:
(a)the normal amount of full-time work for a year of the course is the standard student load determined by the institution for the purposes of HECS; and
(b)the normal amount of full-time work for a semester of the course is 0.5 of the standard student load."
In accordance with the two regulations it is established that the Applicant was undertaking only half the normal amount of full time work for a semester (regulation 35(1)(b) and this work load did not allow her to satisfy the full time student status (Regulation 34) or to satisfy the requirements of a two thirds work load as defined in Regulation 36.
Regulations 12B, 12C and 12E enable Centrelink to make a further determination under Regulation 12B about the Applicant's entitlement to Austudy when there is a variation in information to what was initially provided (Regulation 12C). Regulation 109 made the notification of changes in her enrolment for the second semester 1997 a notifiable event to the Department, with such notification being in writing (Regulation 110). Regulation 12E quantifies the overpayment which arises from any difference arising between the two regulation 12B determinations. This overpayment is taken to be a student assistance overpayment for the purposes of Part 6 of the Act, which in turn allows for student assistance overpayments to be treated as recoverable debts.
The Tribunal finds, as a result of the above consideration that the Applicant has a debt of $8350.11 due and payable resulting from overpayment of Austudy from 13 June 1997 to 31 December 1997
In considering whether the debt could be written off, the Tribunal noted section 287 of the Act, which provides:
"287(1) Subject to subsection (2), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
287(2) 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) the debtor is not receiving a youth training allowance under this Act and it is not
cost effective for the Commonwealth to take action to recover the debt."The Tribunal, in turning to the particulars of the matter finds that there are no circumstances which equate with the nominated situation listed in subsection 287(2) of the Act and accordingly finds that the debt cannot be written off.
The Tribunal next considered waiver of debt arising from sole administrative error on the part of the Commonwealth (subsection 289(i) and/or in special circumstances (s290C) which provides:
"290C 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) filing 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 of the debt or part of the debt."In the context of sole administrative error by the Commonwealth, it is evident that any error which occurred was an error of omission by the Applicant to notify the Respondent of her change in enrolment for the second semester in 1997. Accordingly the Tribunal finds that waiver on administrative error grounds is not open for a successful pursuit by the Applicant.
In relation to the issue of waiver under section 290C, the evidence of the Applicant alludes to a want of consideration when dealing with her enrolment and Austudy for the second semester in 1997. The Applicant was aware that her Austudy was payable on full time work load activity, but in her evidence, she stated that other matters pertaining to her son Josh created distractions, which resulted in her failure to even consider, let alone properly consider the issue of Austudy in the second semester 1997. The question that remains for the Tribunal is whether the Applicant knowingly failed or omitted to comply with a provision of the Act. In considering this question, the Tribunal is of a single view that the Applicant did have a duty to notify and she did not do so and that her failure to so do was a result of either a lack of knowledge that she had to inform or alternatively a lack of considering the issue at the time and/or a combination of both. The Tribunal is of the opinion that the Applicant was aware of her responsibilities in this regard, and that for what ever reason she failed to notify, she had knowledge or should have acquired such knowledge. In essence the Tribunal finds that the Applicant knowingly failed or omitted to comply with the duty of notification, and that while their may be many reasons for failing to so do, the issue remains that she did not notify. In arriving at such a finding the Tribunal, while sympathetic to the demands placed upon a student mother, observes that the Applicant was probably aware that she had to study full time to receive Austudy and apart from making a quick enquiry at re-enrolment, she did not give the matter much thought (T2, p9 &10). Further the Tribunal notes in the Austudy 1997 additional information, that it is clearly stated that there was a requirement to notify the Department within seven days of changing subjects in your course (T4, p25). To conclude the Tribunal finds that the Applicant either had knowledge and/or constructive knowledge of when she had to notify, and that by virtue of an honest mistake, she failed to notify. This failure to notify arises from a failure or omission to act for reasons which are secondary to the issue of knowing that she had a duty to notify, and unless these secondary reasons (eg coma, illness, loss of memory etc) are of a particular quality as to interfere with the carriage of such notification as opposed to such secondary reasons as forgetfullness, preoccupation, lack of thought, other business etc, there remains a singular distinction in the Tribunal's opinion between the situation where one has knowledge that a certain thing has to be done and does it, and in the other circumstances does not do it, because of inaction by the individual. In such circumstances any failure or omission to act would need to be justified by an individual with reasons which would allow the Tribunal to be satisfied that such reasons were beyond the control of the individual, and not necessarily a failure by an individual to pay particular attention to nominated and known responsibilities.
In moving to the issue of special circumstances and those nominated by the Applicant, the Tribunal, mindful of what was said to constitute such special circumstances in ReBeadle and Director General of Social Security (1984) 6 ALD 1, finds that the circumstances nominated by the Applicant do not constitute either together or singularly uncommon, unusual or exceptional circumstances. In making such a finding the Tribunal in recognising the developmental problems of Josh and the continuance of a left renal reflux problem, a depressive episode in the Applicant, a tightened but workable financial circumstance and a hindsight position, put by the Applicant that if she was not being paid Austudy in second semester 1997, she would have been receiving some other form of government allowances concludes, that while there are difficulties associated with working through all but the latter circumstance, the nature and range of each circumstance is not uncommon or unusual or exceptional. The issue of hindsight argument in relation to other social security payments in leu of Austudy is not one the Tribunal finds attractive. In so stating the Tribunal is aware that the Applicant and her partner made their choice as to how they were to fund their endeavours in 1997, and that apart from the difficulties with overpayment of Austudy, all would have been in order. No doubt, if the Applicant had notified the Respondent of her change in subjects for the second semester in 1997, she would have acquired a positive impetus to rearrange financial services. However, as it stands the Applicant had not applied for Newstart Allowance at the time, and while at the start of the year the intention of her partner, had been to stay at home, by 8 May 1997 he had registered with the Commonwealth Employment Service presumably with the intention of seeking work. It is the Tribunal's view that reconstruction of events in such situations is neither a proper exercise nor is it permitted within the nominated legislations. The Tribunal, while considering that it has been nominated as a circumstance in this matter, finds little attraction to the submission, for given all such overpayment situations and the latitude to connect part error (for this is what the submission actually implies), such circumstances would not be unusual, uncommon or exceptional. Further there would be removed any onus upon an Applicant to be held responsible for their own decisions and actions.
In summary it is the Tribunal's finding that the circumstances nominated in this matter are not uncommon, unusual or exceptional and as such do not constitute special circumstances. Accordingly the Tribunal does not waive the debt owed by the Applicant for the reasons nominated in the decision.
determinationThe Tribunal determines that the decision under review be affirmed.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of DR J D CAMPBELL
Signed: .....................................................................................
AssociateDate of Hearing 7 March 2000
Date of Decision 3 July 2000
Representative for the Applicant Self RepresentedRepresentative for the Respondent Ms Maurer
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