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

[2008] AATA 1071

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1071

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/0497

GENERAL ADMINISTRATIVE DIVISION		)
Re		FILIZ GOGEBAKAN

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date  2 December 2008

PlaceSydney

Decision   The decision under review is affirmed.

.........................SGD.....................

Ms N Bell, Senior Member  

CATCHWORDS

SOCIAL SECURITY – Overpayments and Debt Recovery – Youth Allowance – Write Off – Waiver – Whether Applicant is a full-time student - Does Applicant satisfy Activity Test - Decision under review is affirmed.

Social Security (Administration) Act 1999, section 68(2)

Social Security Act 1991, sections 540(1), subsection 541(1) (a), (b) and (c), section 1223(1), 1236, 1237A, 1237AAD (a) and (b).

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

REASONS FOR DECISION

2 December 2008 Ms N Bell, Senior Member

1.      Ms Filiz Gogebakan commenced receiving Youth Allowance in June 2005 when she was a secondary student at Cecil Hills High School. After completing high school, she enrolled in a non-award program at Macquarie University in February 2007, undertaking two subjects per semester and continued to receive Youth Allowance.

2.      On 9 May 2007, after a data matching exercise with educational institutions, Centrelink received a data matching report from Macquarie University about Ms Gogebakan’s part-time studies and raised a debt of $1,507.99 for the period from 26 February 2007 to 14 June 2007 on the basis that she was a part-time student and was not entitled to Youth Allowance.

THE ISSUES

3.      The first issue to consider is whether Ms Gogebakan was eligible to be paid Youth Allowance in the relevant period (26 February 2007 to 14 June 2007). If not, and there is a debt due to the Commonwealth, the question remaining is whether the debt should be recovered.

Was Ms Gogebakan eligible to receive Youth Allowance?

4. Among other requirements, section 540 of the Social Security Act 1991 (the Act) provides that for Ms Gogebakan to be qualified for Youth Allowance, she must throughout the relevant period satisfy the activity test or be exempted from it.

5.      Ms Gogebakan had not been exempted from the activity test.

6.      According to subsection 541(1) of the Act, a person satisfies the activity test in respect of a period if:

(a)  the person satisfies the Secretary that, throughout the period, the person is undertaking full‑time study ; or

(b)  the person satisfies the Secretary that, throughout the period, the person is actively seeking, and willing to undertake, paid work in Australia (other than paid work that is unsuitable for the person); or

(c)  throughout the period, the person complies with the terms of a Youth Allowance Activity Agreement applying to the person.

7.      It is not in dispute that Ms Gogebakan was enrolled at Macquarie University in semester one 2007, for two subjects, totalling 6 hours per week with a value of 6 credit points. For Ms Gogebakan to satisfy the activity test, and thus be eligible for Youth Allowance, she must be enrolled in full-time study at Macquarie University in semester one 2007, as required by section 541(1)(a) of the Act.  In her oral evidence Ms Gogebakan conceded that she was not a full-time student, undertaking full-time study during the relevant period. Nevertheless, at the time she was receiving Youth Allowance Centrelink treated her as a full-time student.

8.      On 16 August 2007, Centrelink received a faxed copy of a letter (dated 17 July 2007) from Lindsey Freeman, Manager Academic Services, Macquarie University, confirming Ms Gogebakan’s study load for 2007. Ms Gogebakan said that this letter had to be written twice by her university co-ordinator because the original letter she sent was lost. The letter clearly stated that Ms Gogebakan was undertaking a part-time study load.

9.      I note that paragraph (b) of section 541 of the Act provides that the activity test is satisfied if a “person satisfies the Secretary that, throughout the period, the person is actively seeking, and willing to undertake, paid work in Australia (other than paid work that is unsuitable for the person).” Ms Gogebakan’s oral evidence to the Tribunal was somewhat confusing and inconsistent on this point. Initially she gave evidence that she was actively seeking full-time paid work and that she was employed part-time at Target during the relevant period.  She later said that her studies prevented her from looking for full-time work and that she was looking for work available around her University schedule. I note the following evidence given by Ms Gogebakan:

I thought that now that I was studying part-time due to the credit points and working, it’s not that – I wasn’t looking for a job still at the same time.  If a position had come up, I would have taken – because I had studied courses in child care.  If I could get extra work in something that’s going to help my studies, I was willing to do so but working around my time table and what days I could work and sometimes it wasn’t – it didn’t like really fit in and would get in the way of my studies because I’m at Uni four days a week and most school time jobs have during the day start at nine, finish at five so it was hard for me to find something that like that fit into my timetable. (Transcript – pg 4)

10.     The Secretary submitted that there was insufficient evidence to support a finding that Ms Gogebakan had been actively looking for suitable work as there was no list or record of potential employers she had approached, although she also gave evidence that she was handing out resumes throughout Westfield Shopping Centre in her local area and was searching the internet on seek.com for full-time work.

11.     I am not satisfied, in light of Ms Gogebakan’s evidence, that she was prepared to accept full-time employment - even if that employment would interfere with her studies.

12.     In relation to paragraph (c) of subsection 541(1) of the Act there is no dispute that there was no Activity Agreement to be complied with by Ms Gogebakan.

13.     It follows that Ms Gogebakan was not eligible to receive youth allowance from 26 February 2007 to 14 June 2007 and, pursuant to section 1223(1) of the Act, the amount of the overpayment is a debt due to the Commonwealth.

Should the debt be recovered?

WAIVER

14.      Section 1236 of the Act, provides for writing off debts. The only circumstances in which a debt may be written off are if;

●         the debt is irrecoverable at law;

●         the debtor has no capacity to repay it;

●          the debtor’s whereabouts are unknown; or

●         it is not cost effective for the Commonwealth to take action to recover the debt.

15.     None of these circumstances apply here. Ms Gogebakan has, since 18 August 2007, made repayments of $15 per fortnight from her Centrelink payments and $30 from her current full-time job earnings every week. There is no basis for write off.

Can the debt be waived on the grounds of administrative error?

16. The Secretary accepts that there was administrative error on the part of Centrelink in recording that Ms Gogebakan was studying at the University of Western Sydney – Hawkesbury. However, it was further submitted that the debt was not due to the sole administrative error of Centrelink, as Centrelink had sought correction or confirmation of this information from Ms Gogebakan. Centrelink sent Ms Gogebakan a number of notices under subsection 68(2) of the Social Security (Administration) Act 1999 advising her that her Youth Allowance was being paid based on her studying full-time at the University of Western Sydney, Hawkesbury, Tertiary Group B course with the course ending on 9 November 2010. The notices also set out her notification obligations. Amongst other things, she was advised that she must notify Centrelink if any information is incorrect or her study load had changed. Ms Gogebakan stated that she kept clarifying things over the phone with Centrelink – but for some reason they had not been recorded in Centrelink’s system. There are no Centrelink records of her response to Centrelink’s letter and Ms Gogebakan did not produce any evidence to indicate that she had corrected Centrelink’s mistake.

17.     Ms Gogebakan did assert that she went to the Centrelink office in Fairfield in early March of 2007 and saw a gentleman there (whose name she could not remember) and gave him a letter which stated that she was accepted into the non-award course at Macquarie University for 2007, identified her name, her student ID username and number, the subjects she was enrolled in and certain procedures that were to be followed. I adjourned the hearing at this point to give Ms Gogebakan the opportunity to provide a copy of this letter to the Tribunal in support of her assertions. Ms Gogebakan filed the following documents with the Tribunal during the adjournment: Important information for Macquarie University Students Access to Online Resources; Non-Award Program 2007 – a Few Points to Remember; Enrolment & Registration Advice 2007; Statement of Outstanding Charges to 30 June 2007 .

18.     The Enrolment & Registration Advice 2007 document is the letter Ms Gogebakan referred to in her evidence. It specified the subjects she was enrolled in for the year and number of credit points she would earn.  However, after investigation there were no records or photocopies of these documents in Centrelink’s system nor did Ms Gogebakan make any further inquiries with Centrelink to find out if her student details had been updated - even though she received another letter from Centrelink on 17 April 2007 noting her enrolment at the University of Western Sydney – Hawkesbury.

19.     On 23 May 2007, Centrelink sent another letter requesting Ms Gogebakan provide information relating to her student review. On 26 June 2007, Centrelink suspended Ms Gogebakan’s Youth Allowance because she did not reply to the letter.

20.       I am satisfied that the debt did not arise solely from an administrative error by Centrelink.

Can the debt be waived on the grounds of special circumstances?

21.     Section 1237AAD of the Act provides for waiver of a debt, or part of a debt, in special circumstances. Special circumstances arise on the facts of an individual case.  For circumstances to be special they must be something unusual, uncommon or exceptional.  In Re Beadle and Director-General of Social Security (1984) 6 ALD 1, the Tribunal summarised the position as follows:

“An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional.  Whether circumstances answer any of these descriptions must depend upon the context in which they occur.  For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.”

22.     Section 1237AAD(b) of the Act provides that the special circumstances must be something other than financial hardship alone.

23.     Ms Gogebakan said in her evidence that she never received the first notice but remembered receiving a letter from Centrelink dated 26 February 2007 stating that she was studying at the University of Western Sydney – Hawkesbury.

24.     Ms Gogebakan said she didn’t know where Centrelink got the information that she was studying at University of Western Sydney, Hawkesbury, because in her dealings with Centrelink, both over the phone and in person, she never provided them with such information and told them that she was studying at Macquarie University. However, there is no record of such conversations in Centrelink’s system and, according to the Secretary; it was not until Centrelink ran a data match with educational institutions that Centrelink became aware that Ms Gogebakan was in fact studying part-time at Macquarie University.

25.     I do not consider that these circumstances are “special” within the meaning of section 1237AAD of the Act.

26.     Ms Gogebakan gave evidence that she was involved in a motor vehicle accident in August 2007 and may require ongoing medical treatment. Because of the accident she had to defer her studies in the second semester of 2007. She resumed her studies in March of this year. Ms Gogebakan lives at home with her family. She is not required to pay rent but buys groceries to help out her mother. These do not amount to unusual or exceptional circumstances.  There is nothing significantly out of the ordinary in Ms Gogebakan’s circumstances.

27.      As I have found there are no special circumstances in this case, I need not consider (in accordance with section 1237AAD(a) of the Act) whether the debt resulted wholly or partly from Ms Gogebakan knowingly failing or omitting to comply with the Administration Act.

28.     For the above reasons, I consider that the debt should be recovered.

Decision

29.     The Tribunal affirms the decision under review.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Snr Member N Bell

Signed:         .................................SGD...............................................
  Associate: Felicia Daniele

Date/s of Hearing  8 September 2008
Date of Decision  2 December 2008

Solicitor for the Applicant            Self-represented

Solicitor for the Respondent     Ms S. Mantaring, Centrelink Legal Services.