Gray and Secretary, Department of Education, Science and Training

[2007] AATA 1348

Administrative Appeals Tribunal

decision and REASONS FOR ORAL DECISION [2007] AATA 1348

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q 200600643

GENERAL ADMINISTRATIVE DIVISION		)
Re		PAUL ANTHONY GRAY

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, SCIENCE AND TRAINING

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date1 May 2007

Place Brisbane

Decision  The decision under review is varied and the applicant’s Austudy debt is reduced in accordance with these reasons.

.................[Sgd].........................

SENIOR MEMBER

CATCHWORDS

SOCIAL SECURITY – Pensions, Benefits and Allowances – austudy – failure to return HECS declaration form – cancellation of enrolment in full-time study – date on which ceased to be in full-time study

WRITTEN REASONS FOR ORAL DECISION

22 May 2007                Senior Member B J McCabe

1.      Mr Paul Gray enrolled in a university course in 2002. His claim for Austudy benefits was approved after he told Centrelink he was a full-time student. Mr Gray apparently commenced his studies but subsequently failed to complete a form and was deemed by the university not to have enrolled in the course. Mr Gray says he continued to study but was confused about his status. He did not tell Centrelink he was not enrolled. The secretary cancelled his Austudy benefits towards the end of 2003 after correspondence with the university. The respondent says Mr Gray was never entitled to the Austudy payments and a debt has been raised against him.

2.      The case turns on the issue of whether, and for how long, the applicant was enrolled in full-time study.

3.      I accept the applicant enrolled in three courses at Charles Sturt University in February 2002. That is a full-time load. I also accept he acquired text books. I am not aware of any evidence to suggest the applicant did not commence his studies in accordance with the university’s requirements at the commencement of the academic year. He says he started reading and corresponded with the faculty. I have no reason to doubt that is so. Some time after he enrolled, the university required that he complete a HECS declaration. All students in public universities are required to complete such a form. The university must collect the information so it can tell the Commonwealth how many students are enrolled, which affects the level of funding to the university. Mr Gray says he understood the form meant he would be required to repay the whole of the debt at the end of his studies. He was unwilling to incur the debt. Curiously, he says he did not elect to drop out: he simply decided not to send the form back. He says now that he had a vague idea there were other options open to him. It seems he thought Centrelink or the university or Tweed Recruiters, the JobNetwork provider, would negotiate a special arrangement.

4.      The university decided to cancel Mr Gray’s registration on 14 May 2002 in the absence of the HECS declaration. The cancellation was backdated to the date of the applicant’s enrolment (ie, on or about 15 February 2002). But Mr Gray says he was not aware his enrolment was cancelled. He says he continued his studies and complied with the course requirements. He says he attended a residential school for one subject (his attendance at a second residential school in another subject was waived) and he sat for an exam in August 2002 and submitted an assignment. It seems the faculty at the university who were continuing to deal with him were unaware of his enrolment status either.

5.      Mr Gray became aware at the end of 2002 that his failure to lodge the HECS form was an obstacle when the university declined to release his results because he was not enrolled as a student. He says he remained committed to the course and did not tell Centrelink he was not enrolled. He says he continued to study and appears to have hoped someone would sort out the situation. He says he told Centrelink staff he was having difficulty with the course but he was also upset with Centrelink because he says the promises of support that were made when he commenced the course were being ignored.

6.      I accept Mr Gray was no longer a full-time student by the end of 2002. It is a mystery how he thought he was entitled to claim he was still enrolled in light of what he was told by the university about his status. It follows he was not entitled to receive Austudy payments and should have told Centrelink so he could be transferred back on to Newstart.

7.      The question, then, is the point at which Mr Gray ceased to be enrolled in the course. Centrelink notes the university says he was not enrolled from the start because of the failure to lodge a HECS form. That is fair enough for the university given its reporting obligations, but it does not bind the decision-maker in this case. I have already accepted Mr Gray started the course. It seems to me he did not cease to be a full-time student until he failed to meet the university’s obligations to file paperwork. The deadline for filing the paperwork was 14 May 2002. That is the point at which his status changed for the purposes of the social security legislation, whatever his status for the university’s reporting purposes. That is the point at which he should have come clean to Centrelink.

8.      I accept the applicant was not entitled to receive Austudy payments after 14 May 2002. The decision under review should be set aside and the debt recalculated accordingly.

9.      The other issue in this case was waiver. I am satisfied there was no administrative error on Centrelink’s part that contributed to the applicant’s debt. I was also unable to identify any special circumstances that affected the applicant. Although he is in financially straitened circumstances, there is nothing that sets his case apart from that of other welfare recipients and marks him out as special or unusual. We discussed his health, his living circumstances and the support he receives from friends and relatives. We also discussed the resources available to him on his property. I cannot waive the debt in the circumstances.

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:         .............................................................................
  Associate      Stephen O’Grady

Date of Hearing  1 May 2007

Date of Written Reasons          22 May 2007
The applicant represented himself at the hearing.

The respondent was represented by Mr Black, a departmental advocate.