Gregory and Department of Education, Training and Youth Affairs

[2001] AATA 114

DECISION AND REASONS FOR DECISION [2001] AATA 114

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2000/38

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      JAMES GREGORY           
  Applicant
           And    SECRETARY, DEPARTMENT OF EDUCATION, TRAINING AND YOUTH AFFAIRS            
  Respondent

DECISION

Tribunal       Mr D.J. Trowse (Member)

Date16 February 2001

PlaceAdelaide

Decision      The Tribunal, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, affirms the decision under review.
  (Signed)
  D.J. TROWSE
  (Member)
CATCHWORDS
EDUCATION – student assistance – overpayment due to cessation of study – waiver of debt – whether special circumstances exist
Student and Youth Assistance Act 1973 ss. 48, 290C
Austudy Regulations No. 11

REASONS FOR DECISION

16 February 2001      Mr D.J. Trowse (Member)                  

1. This is an application for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 8 December 1999 which affirmed a decision made by an authorised review officer on 21 September 1999 to raise and recover Austudy overpayments of $1,350.53.

2. The Tribunal received in evidence the documents lodged by the respondent in terms of section 37 of the Administrative Appeals Tribunal Act 1975, together with six exhibits, one tendered by the applicant and five by the respondent. The Tribunal heard evidence from the applicant, his mother, Mrs E. Gregory, and Mr J. Oakey, who was a teacher at the school where, for a relatively brief period, the applicant was enrolled as a student during the 1998 school year. The applicant, with the assistance of his mother, represented himself and the respondent was represented by Ms J. Nunan of counsel.

3. Unlike the proceedings before the SSAT, the applicant now accepted that an overpayment had occurred because of both his decision to discontinue full-time study due to ill-health and the non-compliance of Austudy Regulation 11 which, in certain circumstances, authorises the extended payment of Austudy during an absence caused by illness.  Instead, the applicant relied upon the provisions contained in section 290C of the Student and Youth Assistance Act 1973 (the Act) which address the waiver of the right to recover in special circumstances.

4. Section 290C of the Act states:

   "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."

5. Central to the issue of special circumstances is the school's action of removing the applicant's name from the roll in early April 1998.  The applicant and his mother claim they continually informed the school of the medical condition being experienced by the applicant and, in fact, had lodged with it medical certificates.  Clearly, the applicant takes the view that, in those circumstances, the school was in error in taking the action it did and that, had his name remained on the roll, his entitlement to Austudy payments would have been ongoing.  However, a reference to the criteria set out in Regulation 11 made pursuant to the Act which, as previously stated, is directed to the question of whether Austudy can be paid during illness, produces an opposing point of view.  Notwithstanding that apparent deficiency, the applicant submitted that the erroneous removal of his name from the roll constituted a special circumstance and that, accordingly, the right to recover the overpayment should be waived.  Moreover, Ms Nunan, on behalf of the respondent, agreed that an acceptance of the evidence given by the applicant and his mother as to the notifications supplied to the school would lead to a conclusion that the disenrolment should not have taken place and that the act of removal represented a special circumstance.  In that event, the Tribunal would be required to consider the other conditions contained in section  290C of the Act before deciding whether the right of recovery should be waived.  Ms Nunan, in referring to the provisions of sub-section 290C(a)(ii), maintained the applicant had failed in his obligation to notify the respondent of his discontinuance of study and, in that respect, he knowingly had failed to comply with section 48 of the Act.
   relevant history and evidence of applicant

6. The applicant, who was born in 1981, enrolled as a full-time student at Paralowie House, an annexe of Salisbury High School, to study during the 1998 scholastic year various year 11 and year 12 subjects.  He claimed and was granted Austudy assistance at the rate of $145.10 per fortnight as from 1 January 1998.  Payment of that allowance continued until 19 June 1998 when, in an enrolment audit conducted by the respondent, it was ascertained that the applicant had ceased studies on 9 February 1998.  The overpayment in question relates to the amounts paid during the period 9 February 1998 to 19 June 1998.  The original decision to recover was made on the 15 June 1998 and an advice of that decision was forwarded to the applicant on 16 June 1998.

7. The applicant confirmed his last day of attendance as being 9 February 1998 and said his continued absence was due to severe irritation from multiple skin conditions.  The Tribunal was referred to medical reports prepared by Dr C.J. Tyson, a Dermatologist, and Dr M. Ghan, a General Practitioner, all of which came into existence after the commencement of the recovery procedures. 

8. The Tribunal notes that Dr Tyson's report dated 5 July 1998 stated that he originally saw the applicant on 28 October 1997 with subsequent consultations transpiring on 6 March 1998 and 12 June 1998.  Dr Tyson indicated a condition of obolinergio orticaria which, in his opinion, was improving with treatment.  His report makes no mention of the prior issuing of medical certificates nor does it address the questions of how and for how long would the condition prevent the applicant from attending school.  The possibility of Dr Tyson having issued medical certificates was raised with him in June 2000 by the applicant's then legal representative and the reply was "I have no record that a medical certificate was issued and although I usually make a record of giving medical certificates, there is always a possibility that I may not have recorded giving one.".

9. The correspondence from Dr Ghan certified that the applicant had been under treatment for skin problems and also indicated that the applicant had, from time to time, suffered from other medical conditions.  In the first of his two letters, Dr Ghan made no mention of the issue of medical certificates, nor to how the condition would impact upon the applicant's attendance at school.  The second letter relates to questions posed on behalf of the applicant as to whether medical certificates had been issued on two nominated dates.  The doctor answered that they had not.

10. According to the applicant, he obtained during the period February to May 1998 four or five medical certificates – one from Dr Tyson and the remainder from Dr Ghan – which were delivered to the school either by himself or his mother.  The applicant told the Tribunal that, on those occasions when he attended to the delivery, the certificates were handed either to a member of staff or a student administrator and that he rang the school the day before for the purpose of making an appointment.

11. The applicant attested to two further visits to the school where he met with Mr J. Oakey.  It was said that the first such meeting took place within a week or so after the cessation of attendance and that the subject matter consisted of the applicant's query as to whether the production of medical certificates to the school would ensure the continuation of his Austudy payments.  The second purported meeting occurred in May 1998 when the applicant, whose skin condition had improved, proceeded to school with the intention of resuming his studies.  It was then that Mr Oakey advised that he was no longer regarded as being a student of the school and that his name had been removed from the roll.  The applicant stated that, following Mr Oakey's disclosure, he re-enrolled and attended thereafter for a period of about three weeks.  It is convenient to note that the roll book which was tendered into evidence makes no reference to the alleged re-enrolment.
    evidence of mrs e. gregory

12. Mrs Gregory ratified that there were occasions when she took medical certificates to the school and that these were handed to persons she perceived to be members of staff.  Also, she claimed that, at various times during the relevant period, she had telephoned the school with the message that her son would not be attending because of his health problems and that, more often than not, the information supplied was conveyed into a telephone answering system.

13. Furthermore, Mrs Gregory gave evidence as to a meeting between herself and Mr Oakey which, according to her memory, took place soon after her son's consultation with Dr Tyson on 6 March 1998.  Matters discussed were said to include a description of the medical problems being encountered by her son, an inability to foretell when he could return to class and the possibilities of sending work home to her son and the hiring of a computer from the school.  Mrs Gregory was certain that Mr Oakey made no mention of her son no longer being a student at the school.
    evidence of mr j. oakey

14. Mr Oakey advised the Tribunal that, in 1998 and earlier years, he was a teacher at Paralowie House which had been established in 1991 to assist students who did not perform well in a normal school environment and that he had been the founder of the program designed for that purpose.  His duties included the maintaining of proper records and the keeping of the school roll.

15. Mr Oakey recalled only one meeting with the applicant which, in his memory, transpired in about March/April 1998 when the applicant visited the school and was seen to be playing pool with some students.  When approached by Mr Oakey with the comment "What are you doing here?  I thought you'd left", the applicant replied "I am doing a TAFE course and I have left school".  Mr Oakey denied both having any discussion with the applicant regarding the need to produce medical certificates for Austudy purposes and the existence of a second meeting in May which, supposedly, resulted in re-enrolment.

16. The proposition that he had met with Mrs Gregory in March 1998 and discussed with her the applicant's medical condition was rejected by Mr Oakey, as was the suggestion that he had received medical certificates and/or telephone calls or messages regarding the applicant's state of health during the period February to May.  Indeed, the evidence of Mr Oakey was that he first became aware of the applicant's medical problems when Mrs Gregory called to see him at school in July 1998 in the hope of reconciling the dispute with the respondent and the subsequent receipt from her of copies of the previously mentioned letters from Dr Tyson and Dr Ghan.  Those letters formed part of a fax sent by Mrs Gregory to Mr Oakey on 21 July 1998, which, inter alia, stated that "hopefully the forwarding of the letters would settle the confusion".

17. Mr Oakley was not able to recall any discussion with Mrs Gregory on the possibility of work being sent home or the hiring of a school computer.
    discussion

18. The primary issue is whether the alleged provision of medical information to the school occurred and, in this regard, the Tribunal moves to a consideration of the testimony of the witnesses appearing before it.

19. Mr Oakey presented in a direct and honest manner and the Tribunal accepts him as a witness of truth.  The submission put by the applicant that Mr Oakley lied in order to cloak the inefficiencies of the school finds no favour with the Tribunal, particularly when other matters contained within the T documents are brought into focus.  First, there is the information made available by Ms J. Pennington, Administrator of Paralowie House, both as a witness before the SSAT and in her correspondence to the respondent and also to the agency then acting for the applicant.  The relevant information is set out below:

• Soon after the beginning of term 1 1998, the applicant informed the school that he was not interested in the pathways being offered at Paralowie House and was considering continuing his studies at TAFE.

• The school had no further contact with the applicant until July 1998 when he and his mother contacted it regarding sick certificates that were supposedly given to staff.

• She had asked all of the staff then at the school whether they had received during the time 9 February 1998 to 21 July 1998 anything relating to the applicant and none had any recollection of receiving medical certificates or of having any discussion with the applicant or his mother.

• If certificates had been received, they would have been noted and retained with the applicant's school records.

• A search of those school records revealed no such notation or retention.

1. Additionally, in June 2000, the legal representative, then acting for the applicant, wrote to staff members, other than Ms Pennington, Mr Oakey and a Miss Apostolides, asking them if they had been given illness certificates by Mrs Gregory and whether they could recall ever having been informed by telephone that the applicant was ill and would temporarily be absent from school.  They answered in the negative.  It seems that Miss Apostolides was not available for comment and, yet according to statements made by Ms Pennington in correspondence, she had been asked those same questions on prior occasions and had answered "no".

2. Sitting uncomfortably with the evidence presented by the respondent is a letter of reply dated 16 September 1998 written by Mr J. Mulraney, Principal of Salisbury High School at that stage, to Mrs E. Gregory.  The text of the correspondence is as follows:

   "I confirm that James Gregory was enrolled at Paralowie House (Salisbury High School Youth Annexe) from the beginning of the school year 1998.  As you have indicated he has not attended the site for his educational program from the 9th of February 1998.
   Further I confirm contact was made with Paralowie House to let them know he had a skin disorder and would find it difficult to attend until the matter was resolved.
   As Paralowie House has an individual progression methodology to support young people complete their secondary education it was possible for James to complete his studies at home and provide his work to his teachers for assessment.
   With changes at both the high school and Paralowie House site from February it appears dispute [sic] everyone's best intentions James information has been misunderstood and the school believed he had left school to pursue other options.
   In hindsight James could have successfully accessed secondary education from February 1998 and could have made more effort to ensure he kept all of his options open.
   I trust this explains the schools position and supports your conversations with the school."

Clearly the above letter represented a reply to a fax sent by Mrs Gregory to Mr Mulraney on 14 September 1998 and which was expressed in the following terms:

"As I understand it you requested copies of the letter from Austudy regarding the debt incurred.
I have had several conversations with Paralowie House & Austudy.  I am currently trying to resolve the issue via the State Education Ombudsman.
I am asking that you accept the information provided in this Fax as the reason why James didn't attend from 9/2/98 until the end of semester one.  To change the date so that this debt is lifted.  Whilst James was absent I did phone Paralowie House to notify them."

It would appear that copies of the previously referred to medical reports of Drs Tyson and Ghan formed part of the material sent to Mr Mulraney.

1. When questioned about Mr Mulraney's letter and the opposing points of view asserted to, Mr Oakey commented that, although the headmastership of Salisbury High School extended to the outreaches of Paralowie House, the Principal would be required to seek information  from the annexe staff concerning the day to day events occurring at that place.  Mr Oakey advised the Tribunal that he had not been so approached by Mr Mulraney and that, upon enquiry, he had been told by other staff members of the annexe that they had not been consulted on this issue.  Certainly the recollections of Mr Mulraney have not caused either Ms Pennington or Mr Oakey to change their recollections of the events pertaining to the applicant's departure.

2. There is no information before the Tribunal as to whether or not Mr Mulraney sought and received the relevant information from any members of staff at the annexe.  Another possibility is that Mr Mulraney's letter was based solely upon his unconditional acceptance of the points made by Mrs Gregory in the fax sent two days prior to his reply.

3. It is the Tribunal's view that the applicant and Mrs Gregory were evasive in the giving of their evidence, particularly, when answering questions they perceived as being important to the outcome.  Additionally, there exists inconsistencies which, although perhaps minor, when taken together, do not inspire widespread acceptance of the evidence of either the applicant or Mrs Gregory.  In the case of the applicant, these include:

• The alleged discussion with Mr Oakey regarding the need to lodge medical certificates with the school for Austudy purposes had never previously been disclosed either before the SSAT or in earlier communications between the parties.

• Notwithstanding the applicant's apparent belief that he remained enrolled, he took no action in connection with a demand for the payment of school fees which was received some time soon after the date of his last attendance.

• When enrolling at the commencement of the 1998 year, the applicant completed a form supplied by the school which, inter alia, stated that he knew of no physical condition that would adversely impact on his school work.

Before the SSAT Mrs Gregory, related details of her telephone call to the school shortly after her son's consultation with Dr Tyson in March 1998 and her subsequent visit to the school where she discussed with Mr Mulraney the applicant's skin condition, the possibilities of computer hire and the sending of work. It was only after some prompting at the hearing of this matter that Mrs Gregory remembered making the telephone call and then offered the explanation that she had mistakenly named Mr Mulraney instead of Mr Oakey.  Then, there is the unusual position of Mrs Gregory not referring to the professed prior lodgement of medical certificates in her fax to Mr Oakey on 21 July 1998.  Finally, the reasons given by Mrs Gregory in seeking a review of the original Centrelink decision are to some extent at odds with the case relied upon by the applicant.  The statement made by Mrs Gregory was as follows:

"I feel it is unfair to be incurred with this debt, especially as my son kept the school informed by phone as to the reasons why he was not attending."

Not only does the statement make no mention of the production of medical certificates and the personal visits to the school, it overlooks the major contribution said to have been made by Mrs Gregory in keeping the school informed as to her son's medical condition.

1. Having had regard to all of the material before it, the Tribunal, on the balance of probabilities, is not satisfied that medical certificates were lodged with the school nor that the school was advised of the applicant's medical condition during the relevant period.  Furthermore, the Tribunal concludes that the only meetings which took place are those described in the testimony of Mr Oakey.

1. In the circumstances, the concession made on behalf of the respondent that a finding supporting the provision of medical certificates and advice would constitute a special circumstance is of no assistance to the applicant.  Nor is the Tribunal able to find any other circumstances which are capable of being classified special.

2. Accordingly, the Tribunal finds that sub-section 290C(b) of the Act is not satisfied and thus the applicant must fail in his application before this Tribunal.  Had it been necessary, the Tribunal also would have concluded that the applicant failed to meet the criteria stipulated in sub-section 290C(a)(ii), that is, he knowingly omitted to comply with section 48 of the Act.
   decision

3. For the reasons given above, the Tribunal, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, affirms the decision under review.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mr D.J. Trowse (Member)

Signed:         .....................................................................................
  Personal Assistant

Date/s of Hearing  4 December 2000
Date of Decision  16 February 2001
Counsel for the Applicant        In person
Solicitor for the Applicant         -
Counsel for the Respondent    Ms J. Nunan
Solicitor for the Respondent    AGS