Found and Secretary, Department of Education, Employment and Workplace Relations

[2008] AATA 222

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 222

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W 200600385

GENERAL ADMINISTRATIVE DIVISION		)
Re		MARGARET FOUND

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr A Sweidan, Senior Member  

Date20 March 2008

PlacePerth

Decision

The Tribunal sets aside the decision under review. 

The Tribunal remits the matter to the decision maker with a direction to find that the debt due by the applicant to the Commonwealth arising from the overpayment of $8,344.86 to the applicant for the period 5 April 2005 to 23 January 2006 is attributable solely to an administrative error made by the Commonwealth and was received in good faith by the applicant and should therefore be waived under s 1237A (1) of the Social Security Act 1991.

…………[sgd Mr A Sweidan]………….

Senior Member

CATCHWORDS

Social Security - overpayment of Austudy - whether due to sole administrative error

LEGISLATION

Social Security Act 1991 - s 1237A (1)

CASES

Re Donnelly and Secretary, Department of Family and Community Services (AAT 433, 2 May 2002)

Re Gerhardt and Department of Employment, Education and Training (AAT 10941, 17 May 1996)

McAuliffe v Secretary, Department of Social Security (1991) 13 AAR 462

Re McKnight and SDSS (1994) 83 SSR 1212

SDSS and Dossis (1990) 21 ALD 628

REASONS FOR DECISION

20 March 2008 Mr A Sweidan, Senior Member    

BACKGROUND

1.      The decision under review is the decision of the Social Security Appeals Tribunal (SSAT) dated 9 November 2006 that the applicant Ms Margaret Found has a recoverable Austudy debt of $8,344.86 for the period from 5 April 2005 to 23 January 2006.

Issues

2.      The issues in this matter are:

(a)Has Ms Found been overpaid Austudy payments?

(b)If so, is the overpayment a debt due to the Commonwealth? and

(c)If so, should this debt be recovered?

Evidence

3.      The undisputed evidence before the Tribunal shows that:

4.      Ms Found was in receipt of Newstart Allowance when on 24 March 2005 she lodged an application for Austudy payments.  In her Austudy claim Ms Found declared that she was studying at Kent Street OTEN (Open Training and Education Network) TAFE to November 2005.

5.      Ms Found also declared that she was a full-time student during semester 1 and 2 and doing 30 hours formal course work per week.  Ms Found says that she based this declaration on the advice given to her by a Centrelink officer.  Centrelink has not disputed this.

6.      On 7 April 2005 Centrelink sent Ms Found a letter notifying her that she would be paid Austudy payments from 5 April 2005 based  on her “studying full time at STRATHFIELD COLLEGE OF TAFE...”.

7.      The letter also advised Ms Found of her obligations “to notify Centrelink within 14 days, if her study load changes or cease to study...  ...she stopped being a full-time student...  ...and if you change your address, you should notify Centrelink immediately.”

8.      The letter also notified Ms Found that if she was paid too much allowance because “she didn't tell Centrelink when she was required to do so, Centrelink may recover the money from [he]”.  Ms Found was also invited to contact Centrelink if she thought the decision was wrong or had concerns about her personal information.

9.      On 19 April 2005, 4 July 2005, 9 August 2005 and 28 November 2005 Centrelink sent Ms Found similar letters identifying her rate of payment and advising her of the notification obligations.

10.     On 10 September 2005 a Centrelink Officer from the Random Review Team sent Ms Found a letter, requiring Ms Found to provide confirmation of her study details to Centrelink.  She did not receive this letter as her address had changed.

11.     On 6 October 2005 Ms Found notified Centrelink of her change of address.

12.     A Centrelink Officer suspended Ms Found's Austudy payments on 18 January 2006 because Ms Found had not responded to the notice sent to her on her 10 September 2005.

13.     A letter was sent to Ms Found notifying her of the suspension action.

14.     On 23 January 2006 Ms Found contacted Centrelink to discuss the suspension of her Austudy payments.  Ms Found's Austudy payments were restored as she stated that she “intends to study full-time in 2006 and is waiting on enrolment details...”

15.     On 30 January 2006 Ms Found contacted Centrelink to apply for Newstart Allowance.  Ms Found's Austudy payments were cancelled, effective from 24 January 2006.

16.     On 21 March 2006 a Delegate for the Secretary determined that Ms Found had been overpaid $6,798.86 in Austudy payments, as her study load was not sufficient to qualify her for Austudy payment during the period 5 April 2005 to 30 November 2005.

17.     This decision was reviewed and varied by an Authorised Review Officer ("ARO") on 28 June 2006.

18.      The main points in the ARO's decision statement of discussion were that:

“...at no time did you [Ms Found] qualify for Austudy payments as you were not a full time student nor were you intending to enroll full time in 2006”; and

“...you did not qualify for any of the Austudy payments made to you over the period 5/04/2005 to 23/01/2006.  This extends the period of the original debt and increases the amount of debt to $8,344.86”.

19.      The ARO also decided that “...the amount overpaid in the period 6 October 2005 to 23 January 2006 of $3,132.40 was to be waived under section 1237AAD of the Social Security Act 1991.... ...because of the time Centrelink took to cancel Ms Found’s Austudy payments after it became aware in September 2005 that she may not have been entitled to the payments”.

20.     On 9 November 2006 the SSAT reviewed the ARO decision.  The Tribunal affirmed the decision that Ms Found had a debt for the period 5 April 2005 to 23 January 2006 and set aside the ARO's decision to waive the part of the debt for the period 6 October 2005 to 23 January 2006.  The SSAT decided that Ms Found had a recoverable Austudy debt for the period 6 October 2005 to 23 January 2006.

21.     The SSAT noted that “in the 2005 academic year the TAFE estimated that Ms Found completed 31.5 hours of study.  In 2005 the full-time study load for Certificate IV Financial Services (Accounting) was 638 hours per year”.

22.     In considering s1237AAD of the Act, the SSAT stated that it agreed

“with the authorised review officer that 4 months was an unacceptably long time for Centrelink to action the information that Ms Found was a part-time student. However the Tribunal differs from the authorised review officer in that it does not agree that Ms Found’ circumstances are special circumstances under the Act. Her circumstances, whilst difficult, are not uncommon or out of the ordinary. Therefore the Tribunal was not able to apply the waiver provisions under section 1237AAD of the Act and waive recovery of all or part the debt”.

23.     On 4 December 2006 Ms Found lodged an application for review of the SSAT decision by this Tribunal.

LEGISLATION

24.      The law relevant to this case is contained in the Social Security Act 1991 (the Act) and in the Social Security (Administration ) Act 1999 (the Administration Act).

Entitlement to Austudy Payment

25. Section 568 of the Social Security Act 1991 (the Act) sets out the requirements for Austudy Payment, which includes satisfying the activity test.

26. Subdivision B identifies the activity test and requirements needed to satisfy the activity test. Section 569(1) of the Act requires the person to be “undertaking qualifying study”. Undertaking qualifying study is defined under s569A of the Act and requires that, in accordance with subsections “(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)”.

27. Section 569C(a) provides that a person is classed as a full-time student when the person is undertaking, or intends to undertake, at least “three quarters of the normal amount of full-time study in respect of the course for that period.”’

28.     To be considered as a full-time student Ms Found needed to be enrolled in, and undertake, at least 75% of the full-time study load.

29.     The documents at T50: pages 137 to 144 are OTEN TAFE correspondence showing Ms Found was enrolled in course 9264 - Certificate IV in Financial Services (Accounting).

30.     OTEN TAFE regards full-time study for this course as being 630 nominal hours over a one year (or two semesters) period.  This equates to 315 module hours per semester or 17.5 hours study per week.

31.     Three quarters of the normal amount of full time study equates to 472.5 hours per year (630 x 75% = 472.5 ).

32.     In 2005 Ms Found enrolled in 4 modules totalling 128 curriculum hours, with a total curriculum of 128 hours per academic year.   The enrolment forms show that only 2 modules, totalling 108 hours, had any work submitted but only one of these modules was listed as being completed.  The work submitted spanned the 2004 and 2005 academic years.  The total estimated hours completed for the 2005 academic year was 31.5  hours.

33.     In 2006 Ms Found’s enrolment form lists 5 modules which total 114 curriculum hours.

34. The Secretary contends that during the 2005 and 2006 academic years Ms Found was not a full-time student as she was not undertaking, nor intending to enroll in at least three quarters of the normal amount of full time study in respect of the course for the 2005 and 2006 periods, and therefore did not satisfy s569C(a) of the Act. Consequently, Ms Found was not qualified to be paid Austudy.

35. Section 569D of the Act allows for concessional study load relating to 25% and 66% concession study load.

36. In accordance with s569D(4) a person satisfies the requirements of a 25% concessional study load if an officer in the Commonwealth Rehabilitation Service or an appropriate medical practitioner or registered psychologist who has a detailed knowledge of the person’s physical, psychiatric or intellectual condition has stated in writing that:

i.the person has a substantial physical, psychiatric or intellectual disability; and

ii.the person cannot successfully undertake the normal amount of full-time study in respect of the course because of the disability.

37.     There are no medical reports to show that Ms Found had any physical, psychiatric or intellectual disability which would prevent her from successfully undertaking her normal amount of full-time study, in respect of the course for the 2005 and 2006 academic years.

38.     According to the documents at T50: pages 141 to 144 Mrs Found has only completed one module over a two year period.  In the 2005 academic year Ms Found estimated study hours were 31.5, which is less than the 25% requirement of a concessional study load.

39.     The provisions relating to the 66% concessional study load are not relevant in this matter as Ms Found failed to complete this amount in the period of the debt.

Debt due to the Commonwealth

40. Section 1223(1) of the Act provides that if “(a) a social security payment is made; and (b) a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit; the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.” 

41. The Tribunal finds that in this case Ms Found was not a full time student for the purposes of the Act. She therefore was not qualified to be paid Austudy during the period 5 April 2005 to 23 January 2006 and was overpaid Austudy Payments of $8,344.86, which is therefore a debt due to the Commonwealth.

Write off debts

42. Section 1236(1) of the Act states that “The Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise”’

43.     Subsection 1236(1A) provides that:

“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.”

44. The Tribunal finds that the recovery of this debt should not presently or for a future period be written off, as Ms Found does not satisfy any of the requirements under s1236(1A) of the Act. Ms Found has the capacity to repay the debt and is displaying that she has the capacity to repay the debt, which is currently being garnisheed at 10% of her income.

45.     In addition Ms Found has assets in the form of the property at 37 Stead Road, Maddington, Western Australia.

Non Recovery of Debts – Administrative Error

46. Section 1237A(1) of the Act states that the Secretary must waive the right to recover a debt that “is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment”.  The notes in this section also include the provision that “subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor)”.

Sole Administrative Error

47.     The document at T2: pages 4A to 5A: paragraph 7 of the T-Documents provides a summary of Ms Found's testimony to the SSAT which was repeated in evidence at the hearing before the Tribunal.  Ms Found stated that:

“The Centrelink letter dated 18 January 2006 was the first notification she received about the letter dated 10 September 2005....  .....[because] ....she moved from Sydney to Perth on 23 August 2005 and... went into Centrelink...  ...in October 2005 to notify her change of address;

She was studying at home while she received the austudy payments...  ...and did not think she was a part-time student because of the hours she was studying

Centrelink suggested that she go onto austudy. She was only going by what Centrelink told her. She had no idea how austudy worked...

There was nothing to say what her conditions were for full-time study. She was told 20 hours a week study was okay and that would cover her for austudy....

She went back to re-enrol in 2006 because she wanted to finish off her studies.”

48.     Ms Found's representative, Mr Hannah submitted to the SSAT and to this Tribunal that:

“The authorised review officer acknowledged that Centrelink did not adequately check Ms Found’s enrolment until a data match;

Ms Found has not got the nominal hours up for a full-time student, but there are key incidents when Centrelink failed to do its job;

The Memorandum of Understanding between Centrelink and TAFE NSW (MOU) at item 7 refers to data collection on a monthly basis. Ms Found commenced her course on 7 April 2005 and in the period to 27 June 2005 three of these data collection dates had passed. Yet Centrelink did not check to see that Ms Found’s enrolment was correct; When Centrelink reviewed Ms Found on 27 June 2005 she was not questioned about any of these rigid rules and about the hours for a full-time student.

Item 9 of the MOU refers to timeliness of submissions and that there should be early detection of any incorrect payments;

Item 8 of the MOU refers to the data format Centrelink is meant to do the things required by the MOU.”

49.     The Secretary contends that the debt did not arise due to sole administrative error made by the Commonwealth.  The Tribunal rejects this contention for the reasons set out below.

50.     The meaning of the word “solely” is an important consideration.  In the unreported decision of Re Gerhardt and Department Employment, Education and Training (AAT 10941, 17 May 1996), the meaning of “solely” as it formerly appeared in section 289(1) of the Student and Youth Assistance Act 1973 was considered. That subsection was in terms similar to section 1237A(1) of the Act and the Administrative Appeals Tribunal held that the word “solely” meant “exclusively”, “only” or “to the exclusion of all else”.

51.     Specifically, the Tribunal stated in Re Gerhardt that —

“There is nothing in section 289(1) [section1237A(1)] which indicates that any meaning should be given to "solely" other than its ordinary meaning. Applying those ordinary meanings to the sub-section mean that the Secretary must waive the right to recover the proportion of the debt that is attributable only to the Commonwealth's administrative error. The Secretary's duty to waive does not extend to those debts which are attributable to errors or other factors which are independent of the Commonwealth's administrative error. It makes no difference that those other errors or factors are minor.”

52.     As pointed out by the Tribunal in the case of Re Donnelly and Secretary, Department of Family and Community Services (AAT 433, 2 May 2002), there is no substantive difference between section 289(1) of the Student and Youth Assistance Act 1973 and section 1237A(1) of the Act. Consequently, as noted in Re Donnelly, it is appropriate to take the same view of the meaning of the word “solely” in relation to section 1237A(1).

53.     Centrelink's normal course of assessment is from information declared or presented by the recipient of Social Security payments.

54.     The document at T9: page 58 reads “Clt (client).... ....is still continuing this Oten course stating doing 25/30 hrs per week....   ... I told her that her options were to apply for Austudy or do it part time...”

55.     It appears from the above document that Ms Found was informed of her options based on the information that she provided to Centrelink.  However, there is no evidence to show that she was told what “part time” meant, and her evidence is that she was not told and the Tribunal accepts that she told the Centrelink officer what her actual study hours were, ie. 30 hours per week.

56.     Ms Found decided to claim Austudy the same day and a copy of the completed claim form is at T4: pp. 24 to 46.

57.     The first page of the claim form states that it should be accompanied by the booklet “Information you need to know about your claim for Youth Allowance/Austudy” (‘the booklet’). If the information booklet was not provided with the claim form, there were instructions as to how to obtain a copy of it.

58.     The second page of the claim form lists the rules for Austudy and explains the “three easy steps” to claim payment.  Step 1 reinforces the need to read the booklet before completing the claim.

59.     Part D, question 4 of the claim requires a response as to whether a person is enrolled on a full-time or part-time basis and states that 'to be eligible for Austudy you MUST meet the course workload rules.'

60.     The claim form also states that if a person is unsure of their study load, they should attach details of the course subjects, and provides various options in regard to declaring the study times.

61.     It is not in dispute that Ms Found provided confirmation of her 2005 enrolment (see T5: pg. 47), Ms Found also declared that she was a full-time student in both semester 1 and 2, as opposed to ticking the boxes labeled “Don't know”.

62.     Question 5 goes on to ask “How many hours per week do you spend studying”, and states “not to include private study times, just the education institution formal course work only.”

63.     Ms Found declared that she was studying 30 hours per week.

64.     Page 6 of the booklet contains information about the study rules, including an explanation about what is considered to be a full time study load, such as three quarters of the normal amount of full-time or within the minimum time or at least 15 hours of face to face study in a week (combining lecturers and formal consultation).

65.     The Progress rules paragraph in the booklet identifies that “As a general rule, where the minimum time to complete the course is: - one year or less then the allowable time is the minimum time of the course”.

66.     Ms Found signed a declaration that the form was complete and correct, that she was studying as a full-time student, that she was aware of the Privacy notice in the booklet and that she understood that the information provided on the claim would be used to decide the correct payment.  However she was clearly relying on the advice of the Centrelink officer.

67.     In the case of Re McKnight and SDSS (1994) 83 SSR 1212 the Tribunal held that Miss McKnight’s misrepresentation on her application form significantly contributed to the debt.

68.     In McKnight the applicant was in receipt of a Job Search Allowance while she enrolment as a full-time student.  The applicant argued that the recovery of the debt should be waived because she was informed by the Department that she was a job seeker.  The Tribunal found that:

“...It is not necessary, for the purposes of this subparagraph, that the relevant statement or representation be intentionally or deliberately untrue; it is sufficient that it be in fact untrue: McAuliffe v Secretary, Department of Social Security (1991) 13 AAR 462' (at 30).

....the applicant made false statements or false representations when she responded “No” to the question “Have you enrolled, or will your enroll as a full-time student?”... ...The Tribunal further finds that these false statements or false representations were a substantial contributing cause of the payment to her of JSA and NA during the relevant period (at 31).”

69.     Ms Found's representative, Mr Hannah has also raised the issue of early detecting from data matching in accordance with the Memorandum of Understanding between Centrelink and TAFE NSW ("MOU").

70.     The Tribunal notes that  clause 10 of the MOU states:

“Request for further, or verification of, student enrolment, workload or attendance nformation is to be made in the first instance to the student”.

71.     The Tribunal notes that Ms Found informed the SSAT that she had not received the letter sent by Centrelink on 10 September 2005 requesting confirmation of her study details, and was not aware of the letter until her payments were suspended.

72.     The payments were suspended four weeks after the notice and the Secretary contends that Mrs Found’s failure to notify Centrelink that she had moved address on 23 August 2005, until 6 October 2005 contributed to the debt.

73.     Alternatively, the Secretary contends that in accordance with s237 of the Admin. Act 1999, s29 of Act Interpretation Act 1901 and SDSS and Dossis (1990) 21 ALD 628 as the letters were sent to the correct address, they are deemed to have been received, and the Secretary contends that Ms Found's failure to respond to the Department’s letters also contributed to the debt.

74.     Ms Found later contacted Centrelink on 23 January 2006 and was notified that she had to do at least 270 module hours in the next 6 months to satisfy the requirements for Austudy.  Ms Found stated that she intended to study full time in 2006, but only enrolled in subjects totalling 114 hours.

75. The Secretary contended that Ms Found’s misrepresentation of her being a full-time student, whether intentionally or unintentionally, significantly contributed to the debt, and therefore Ms Found does not satisfy s1237A(1) of the Act.

76. In summary, the Secretary contends that the recovery of the debt cannot be waived under s1237A(1) of the Act as it cannot be attributed to sole administrative error by the Commonwealth. The Tribunal rejects this contention for the reasons set out below:

77.     Ms Found testified that she initially informed Centrelink that she was studying part time and was told that her study was her own problem and would not be included in any mutual obligation agreement.

78.     Ms Found says that she was then encouraged to test her eligibility for Austudy by the Centrelink officer.

79.     Centrelink are bound by the BPA (Business Partnership Agreement) with the DEST (Department of Education Science and Training).  The objective of the agreement is to improve access to education, training and employment.

80.     The Tribunal accepts the evidence of Ms Found that she trusted Centrelink and relied on the Centrelink officer to help her apply for Austudy and get a recognised qualification that would get her a good job.

81.     In the Tribunal’s view it is not reasonable to expect Ms Found to be able to interpret the complexities of the legislation.

82.     The Tribunal finds that Ms Found has had limited schooling and relied heavily on Centrelink to help her with what was required of her.

83.     Centrelink’s information brochures and the legislation use terms like “nominal hours”, “minimum amount of time it would normally take to complete a full-time course”, “at least 75% of the full-time load”, “a person must be undertaking qualifying study”. These terms may well all mean the same thing, however, in the Tribunal’s view they are not explained adequately anywhere and specifically in the contract Ms Found signed or in the reference documentation listed on the Austudy claim form (Centrelink Doc - Information you need to know about your claim). No practical examples are supplied in this document to help Social Security Recipients wishing to study.

84.      The Social Security Acts are apparently drafted by legally trained people and are difficult documents for a lay person to read, so much so that Centrelink officers are given Social Security guides and flow charts to work from when assessing claims.

85.     The legislation gives mathematical examples to help explain how certain provisions are to be applied to Social Security customers. These examples are clearly given to help Centrelink staff and legal professionals involved with interpretation of the legislation.

86.     In the Tribunal’s opinion the Austudy contract Ms Found signed is clearly inadequate in that does not specify what is required of her (Unlike her Newstart Contract).

87.     Ms Found filled in the Austudy claim form with the assistance of the Centrelink officer and relied on the advice of that officer.

88.     Ms Found explained to the officer that she was doing a correspondence course and that she did not have a School Certificate.

89.     A School Certificate (Year 10) is the recognised bottom end of the Australian educational system.

90.     Ms Found clearly gave an honest answer to the question “How many hours do you spend studying? Do not include private study times”. Ms Found gave an honest assessment of her study hours at the initial claim and at the review stage (a fact agreed by all members of the debt review process).

Duty of Care

91.     Australian Government employees have a duty of care to the public when performing their duties. This advice extends to any advice given and any actions performed.

92.     It is well established that a duty of care with regard to advice involves the performance of duties to a reasonable standard of care. “Reasonable” generally means a standard of care expected of a reasonably prudent public servant administering welfare legislation consistent with sound administrative principles. (See Shaddock v Parramatta City Council).

93.     The Tribunal notes that the Department’s internet website states: “Advice can be given either orally or in writing. The consequences of incorrect advice are the same whether it is given orally or in writing, so the same degree of care MUST be taken. Care must be taken to ensure that oral advice is expressed clearly enough for the person to understand, taking into account any obvious educational and language barriers.”  (Guide to social security law/ Found says that she was told to write down “fulltime student” by the Centrelink officer in semester 1 to qualify for Austudy. Two months of the semester had already passed when she applied for Austudy.

95.     It also appears that Centrelink did not perform their duties to a reasonable standard of care in explaining the Austudy progress rules to Ms Found when she handed them the Enrolment form.

96.     The Tribunal notes in this regard that Centrelink Staff  MUST DO instructions in their “Austudy qualification guide” says - “While in receipt of Austudy, customers must be enrolled in and undertaking at least 75% of the normal amount of full-time study” and that:

“Centrelink’s agreement with DEST requires that Austudy claims are processed accurately, with particular attention paid to verification of the customer's age, residence (where applicable) and enrolment with an educational institution or as an Australian Apprentice”

Note: “Staff cannot use any discretion when applying this law, policy or procedure unless otherwise stated”

97.     Ms Found says that she did not receive the Centrelink letter of 10 September 2006.  Ms Found concedes she did not inform Centrelink immediately when she changed address. This caused the letter to be sent to the wrong address. 

98. Centrelink were required to automatically cancel Austudy benefits for Ms Found (Re: Letter 10 September 2006) under Section 95 (1) of the Social Security (Administration) Act 1999 because of failure to provide a statement under 68(2) but did not do so for a period of 4 weeks.

Extract from Social Security (Administration) Act 1999

“95 Automatic cancellation—failure to provide statement under subsection 68(2)

(1)       If:

(a)       a person who is receiving a social security payment is given a notice under subsection 68(2) requiring the person to give the Department a statement or a number of statements; and

(b)       the notice relates to the payment of the social security payment in respect of a period or a number of periods specified in the notice; and

(c)the person does not comply with the notice so far as it relates to a particular period;

then, subject to subsection (2), the social security payment is cancelled, by force of this section, on the first day in that period.”

99. Centrelink’s failure to action Section 95 of the Social Security (Administration) Act 1999 in not automatically cancelling Ms Founds Austudy as required by the Social Security (Administration) Act 1999 effectively doubled Ms Founds debt to the Commonwealth.

100.    Ms Found attended the Gosnells Centrelink office on 6 October 2005 to notify her change of address.  She was not informed then that there was a problem with her Austudy and had no reason to believe there was a problem as she was still receiving her Austudy payments.

101.    Ms Found did re-enrol in the course in 2006, but says that she became very disheartened with Centrelinks unsupportive attitude to her studies, and threats of legal action, so she quit and went back onto Newstart.

102.   It should be noted that Ms Found went onto reduced benefits in order to study. She considered it a small price to pay for the opportunity to study and get a recognised qualification and get a good job.

103.    Ms Found says that she thought she was a fulltime student based on what she was initially told by the Centrelink officer and enrolled in 2006 on that basis.

104.   The Tribunal finds that Ms Found did not intentionally provide misleading information. It is clear that she should never have been allowed to go on Austudy based on the information she gave Centrelink.

105.   In the Tribunal’s view the wrong advice given by Centrelink as well as Centrelink’s initial incorrect decision to grant Austudy and the inadequate review procedures subsequently used in Ms Found’s case are the sole cause of the debt due by her to the Commonwealth. 

106.   Ms Found did not qualify for Austudy at all and should not have been put on Austudy.  There would not have been a debt if she had been correctly processed as she would have been put on Newstart.

Good Faith

107.   The Tribunal finds that the facts of this case are distinguishable from the cases cited by the respondent and that Ms Found received the Austudy payments in good faith.

108.   The Tribunal, for the reasons given above, finds that the applicant’s debt was due solely to administrative error and that the debt should therefore be waived.

109. The Tribunal is of the view that it is not necessary to make any finding as to whether there are any special circumstances that would warrant the waiving of the recovery of the debt under s 1237AAD of the Act.

DECISION

110. The Tribunal sets aside the decision under review and remits the matter to the decision maker with a direction to find that the overpayment of $8,344.86 to the applicant for the period 5 April 2005 to 23 January 2006 is attributable solely to an administrative error made by the Commonwealth and was received in good faith by the applicant and should therefore be waived under s 1237A (1) of the Social Security Act 1991.

I certify that the 110 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member

Signed:         ..............[sgd Mr J Lim]...................................
  Associate

Date of Hearing  9 November 2007
Date of Decision  20 March 2008
Applicant’s representative        Mr Brendan Hannah
Counsel for the Respondent     Mr Richard Wright
Solicitor for the Respondent     Centrelink Legal Services Branch