Grice; Department of Education, Training and Youth Affairs - [2000] AATA 628

DECISION AND REASONS FOR DECISION [2000] AATA 628

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/444

GENERAL ADMINISTRATIVE DIVISION       )
           Re      SECRETARY, DEPARTMENT OF EDUCATION, TRAINING AND YOUTH AFFAIRS
  Applicant
           And    WAYNE ALLAN GRICE
  Respondent

DECISION

Tribunal Ms S M Bullock, Member

Date1 August 2000
PlaceSydney

Decision      The Tribunal sets aside the decision under review and in substitution therefor decides that: 1.         An overpayment debt of AUSTUDY exists from 1 January 1997 to 10 September 1997 in the amount of $4,821.32 as Mr Grice was not in full-time study in this period; and 2.           Pursuant to section 290C of the Student and Youth Assistance Act 1973, half of the debt owed by Mr Grice should be waived because of the special circumstances which exist.
  [Sgd] S M BULLOCK
  Member
CATCHWORDS

AUSTUDY – tertiary student – whether full-time student - AUSTUDY not payable – debt – waiver – whether special circumstances exist.

Student and Youth Assistance Act 1973 – ss7, 289, 290C
AUSTUDY Regulations – 34, 35, 36, 38, 41
Social Security Legislation Amendment (Youth Allowance Consequential and Related Measures) Act 1998 – Schedule 11, Item 133(3)

Department of Employment, Education, Training and Youth Affairs v Moore (1998) 50 ALD 980
Department of Employment, Education, Training and Youth Affairs v Gray (1999) 91 FCR 254
Re Department of Employment, Education, Training and Youth Affairs and Chakar (AAT 12641, 23 February 1998)
Re Sweet and Department of Employment, Education and Training (AAT 8907, 8 July 1993)
Re Iovino and Secretary, Department of Employment, Education, Training and Youth Affairs (AAT 11514, 24 December 1996)

REASONS FOR DECISION

Ms S M Bullock, Member

This is an application for review by the Applicant, the Secretary, Department of Education, Training and Youth Affairs ("the Department") of a decision of the Social Security Appeals Tribunal (the "SSAT") made on 12 February 1999 which decided that Mr Wayne Allan Grice, the Respondent, was qualified for AUSTUDY in 1997 and accordingly there was no debt of $3,724.71 owed to the Commonwealth. The SSAT's decision set aside a decision of a Review Officer made on 17 June 1998 which decided that Mr Grice owed a debt of $3,724.71 arising out of an overpayment of AUSTUDY and that the debt must be repaid (T20,T21). The Review Officer's decision affirmed a decision made by a delegate of the Department on 10 September 1997 (T12).
A hearing was held before the Administrative Appeals Tribunal ("the Tribunal") in Sydney on 24 March 2000. The Applicant was represented by Mr A Pearson, solicitor with the Australian Government Solicitor. The Respondent, Mr Grice, was self-represented and provided oral evidence to the Tribunal. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T documents" T1-T24) and the following exhibits:
Exhibit No A1 A2 R1 Description Applicant's Statement of Facts & Contentions Applicant's scenarios regarding possible calculations of Mr Grice's course workload Respondent's Statement of Issues Date 19 November 1999 24 March 2000 Undated

ISSUES:

The issues before the Tribunal are:
1)whether Mr Grice was a full-time student during the Autumn and Spring semesters of 1997, as provided for by AUSTUDY Regulations 34 and 35; and if so
(2)whether there is an overpayment of AUSTUDY to Mr Grice; and if so
(3)whether there are any circumstances which would allow for the non-recovery of the debt in part or as a whole.

LEGISLATION:

A determination of this matter requires the consideration of the Student and Youth Assistance Act 1973 ("the Act") and AUSTUDY Regulations which are made under section 7 of the Act.
It should be noted that the AUSTUDY scheme was repealed from 1 July 1998. As the Applicant lodged his application for internal review prior to 1 July 1998, the transitional provisions permit the application for review to the Tribunal to proceed on the basis of the law as it stood prior to 1 July 1998 [Social Security Legislation Amendment (Youth Allowance Consequential and Related Measures) Act 1998; Schedule 11, Item 133(3)].
AUSTUDY Regulations 34, 35, 36, 38 and 41 are relevant.
Regulation 34 deals with the workload of tertiary students and, as relevant, states:

"34 Workload: tertiary Students
34(1). A tertiary student must study full-time.

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 as set out in regulation 35.
A student is not full-time in a period if 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.

…"

Regulation 35 deals with workloads as it relates to the normal amount of full-time work and, as relevant, states:

"35 Workload: normal amount of full-time work
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 1988:
(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.(1)

if the course is not a designated course for HECS, the normal amount of full-time work for a year of the course is:
(a) if the institution specifies an amount that a full-time student should typically undertake – the amount specified; or
(b) in any other case – the amount calculated using the following formula:

total work of course
total length of course
where:
"total work of course" is the total amount of work of the course;
"total length of course: is the minimum number of years needed to complete the course.

if the course is not a designated course for HECS, the normal amount of full-time work for a semester of a course is:
(a) if the institution specifies an amount that a full-time student should typically undertake – the amount specified; or
(b) in any other case – half the normal amount of full-time work for a year of the course.
if the course is not usually offered on a full-time basis(2) – the normal amount of full-time work for a year is the normal amount of full-time work of another course that:
(a) is offered on a full-time basis; and
(b) is in a comparable field of study and is of the same level.
Notes to regulation 35
1 HECS liability is calculated once each semester, but the AUSTUDY workload test is a continuing test.
Subregulation 35(4) defines the normal full-time workload for courses that are essentially part-time. This is because occasionally students undertake a full-time workload in such courses…"
Regulation 36 deals with workload concessions and, as relevant, states:
"36 Workload: concession – academic and vocational reasons
36.(1) The workload required by regulation 34 is reduced to two-thirds of the normal amount of full-time work if the student cannot meet the usual requirement because of:
(a) the institution's usual requirements for the course that the student is undertaking; or
(b) a specific direction in writing to the student from the academic registrar or an equivalent officer.
The workload required by regulation 34 is reduced to two-thirds if the academic registrar (or an equivalent officer) of the educational institution recommends in writing that the student undertakes less than the normal full-time workload for specific academic or vocational reasons.
(3) Subregulation(2) cannot apply to more than half of the academic year.
Note to regulation 36

1 For example, Ben is undertaking a Bachelor of Engineering course. He passes all the first year subjects except Mathematics 1, which he fails.
The next year Ben repeats Mathematics 1 (which is 25% of the normal full-time first year workload). A pass in Mathematics 1 is a prerequisite for 55% of second year engineering, so Ben can enrol in only 45% of second year. His total workload is therefore 70% of a normal full-time workload (25% + 45%).
Ben is taking a reduced workload because the institution's rules prevent him from undertaking more subjects. Hence the workload test is whether Ben is undertaking at least two-thirds (66.6%) of a normal full-time workload, not the usual test of three-quarters (75%) of a normal full-time workload…"

Regulation 38 deals with the time spent rules – the level of tertiary study and, as relevant, states:
"38 Levels of tertiary courses
…

(4) Group B courses are:
(a) a bachelor degree course (other than a postgraduate course), with or without honours;

(ab)the bachelor level component of a masters degree course with concurrent bachelor and masters level study;

(b) a diploma course other than:

(i)        graduate or postgraduate diploma course; or
(ii)       a course for which an entry requirement is successful completion of year 10 of secondary studies; or
(iii)      a TAFE course;

(c)        Master's qualifying course;
(d)       the Barristers or Solicitors Admission Board's course;
(f)        a course of advanced education regarded by an accrediting authority as being at UG1 or UG2 level.

…"

Regulation 41 deals with how previous study is treated for AUSTUDY purposes and, as relevant, states:
"41 Previous Study: time spent on course
41.(1) A student can get AUSTUDY in a year or semester of study (as the case requires) for a tertiary course on if, at the relevant date, the time already spent by the student in full-time study at the level of the tertiary course, (1) is less than:
(a) if the minimum time for the course is more than one year – the sum of the minimum time for the course plus:
(i) half a year;(2) or
(ii) if the student is enrolled in a year-long subject – one year; or
(iii) if the student's further progress in the course depends on passing a whole year's work in the course – one year; or
(b) if the mimimum time for the course is one year or less – the minimum time…
(3) In this regulation:
"minimum time" means:
(a) the minimum time needed to complete the course at pass level; and
(b) any additional honours years that the student has undertaken or is undertaking in the course'
"relevant date" means:
(a) the start of the semester; or
(b) if the course is not divided into semesters – the start of the academic year; or
(c) if, after a semester has started, a student who is not studying a year-long subject changes his or her enrolment and starts studying a year-long subject – when this change occurs; or
(d) if, after a semester or academic year has started, a student's enrolment is changed and no longer includes a year-long subject – when the change occurs.
Notes to regulation 41
1 Levels of courses are explained in regulation38.
2 Example 1: Tim is doing only semester subjects this year in his 3 year course. At the start of the academic year, he has so far undertaken more than 3 but less than three and a half years of full-time tertiary study. Because he is still eligible for AUSTUDY, he will get AUSTUDY until the end of 1st semester.
3 For normal amount of full-time work, see regulations 34 and 36."

Section 289 of the Act deals with the waiver of a debt because of sole administrative error and, as relevant, states:
"289.
(1)       Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.
Note:Subsection (1) does not allow waiver of 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).
(1A)     Subsection (1) only applies if:
(a)the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or
(b)if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;
whichever is the later.
Underestimating value of property
(2)       If:
(a)a debt arose because the debtor, the debtor's partner, or the debtor's parent or parents underestimated the value of particular property; and
(b) the estimate was made in good faith; and
(c)the value of the property was not able to be easily determined when the estimate was made;
the Secretary must waive the right to recover the proportion of the debt attributable to the underestimate.
Proportion of a debt
(3)For the purposes of this section, a proportion of a debt may be 100% of the debt."

Section 290C of the Act deals with the possibility of waiver of a part or whole of the debt in special circumstances and, as relevant, states:
"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 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."

BACKGROUND:

The information contained in this section is provided by way of background and the facts contained herein are not in dispute:

In 1995, Mr Grice commenced a Diploma of Horticulture course at the University of Western Sydney, Hawkesbury. The course required full-time study over two years requiring the completion of 16 core semester-long subjects, usually undertaken as four subjects per semester. The semesters at the University of Western Sydney consisted of the Autumn semester and the Spring semester.
A further requirement of the diploma course was the completion of a component "Commercial Horticulture Experience" which required 20 days of practical work experience and the submission of a report at the completion of the 20 days practical work.
The 16 core subjects each carried a "HECS loading" of 0.125 per semester, the normal amount of full-time work per semester being 0.500. The Commercial Horticulture Experience was not liable to a HECS rating. Although it was a compulsory component of the course, it had no "credit point" value.
In his first year of study, 1995, Mr Grice failed the subject "Horticultural Practice 1".
In 1996, Mr Grice failed the core subjects "Plant Biology 2", "Agricultural and Horticultural Systems", "Crop Productions 3", and once more failed "Horticultural Practice 1".
In February 1997, Mr Grice enrolled in the four subjects he had failed during 1995 and 1996 and also was enrolled to complete his Commercial Horticulture Experience ("CHE").
Mr Grice lodged an "AUSTUDY Continuing Application 1997" on 24 February 1997 (T4). He indicated he was in his third year of study and was studying full-time from 24 February 1997 to December 1997. The form required the attachment of course details and subjects, however, it is uncertain whether this occurred.
Mr Grice was paid AUSTUDY at the Independent rate commencing on 13 March 1997 (T7, p35).
On 17 July 1997, Mr Grice lodged an "AUSTUDY Eligibility Check" form in which he indicated there had been no change to his situation (T10). At Question 8 on the form, Mr Grice was required to provide his current 1997 study details but he did not do so and the form was left blank at that point (T10, p39).
On 12 August 1997, a "Tertiary Enrolment Check Referral Report" was completed with academic details provided by the University of Western Sydney. The form indicated that Mr Grice had withdrawn from a course coded "DUMM 24" on 27 February 1997 and was enrolled in Semester 1 in subjects with a total HECS ratings of 0.250 which is below that required for full-time study for AUSTUDY purposes (T11, p42).
As a result of this information, Mr Grice was advised on 10 September 1997 that his AUSTUDY had ceased because a departmental delegate considered that Mr Grice had not been in full-time study after 27 February 1997, the date recorded on the Tertiary Enrolment Check Referral Report as the date when Mr Grice withdrew from the subject "DUMM24". Applying the provisions contained in the AUSTUDY Regulations as to the calculation of overpayments, the departmental delegate determined on 10 September 1997 that an overpayment of AUSTUDY had been made in the amount of $3,724.71, the amount of AUSTUDY Mr Grice was paid after 27 February 1997 until 10 September 1997 (T12).
Mr Grice sought a review of this decision and noted in his letter seeking review:
"I re-enrolled in two subjects plus commercial horticulture Experience (20 days – 1 day per week) in Autumn semester of 1997. However as there was only 14 weeks in this semester and commercial horticulture work experience would take 20 weeks, I was withdrawn without penelty (sic) in Autumn semester and continued and passed this subject in spring semester. I also re-enrolled in two other subjects in spring semester.
Therefore, throughout the year, I was enrolled in two subjects in spring semester and two subjects in autumn semester, and for twenty consecutive week (sic) was enrolled in Commercial Horticulture work experience." (T14)
In the Autumn semester of 1997, Mr Grice successfully completed Horticultural Practice 1, gaining a distinction. He also completed Plant Biology 2 with a pass. In the Spring semester 1997, Mr Grice gained a credit for Agricultural and Horticultural Systems and a credit for Crop Productions 3 (T15). Mr Grice submitted his CHE report in October 1997 for which he attained a distinction.
On 17 June 1998, a departmental Review Officer affirmed the delegate's decision noting the examination results provided to Mr Grice on 19 December 1997 which recorded Mr Grice as having completed two subjects each in the Autumn and Spring semesters, but having redrawn without penalty from CHE in the Autumn semester 1997.
Ms Mandy Stevens, Co-ordinator at the School of Horticulture, University of Western Sydney, provided evidence to the SSAT and the SSAT noted:
"16.… Ms Stevens explained that the Diploma in Horticulture is a two year course with 16 subjects, each of which is weighted at 0.125, or one eighth of the requirements for each year. Students normally do four subjects a semester, and five in the semester when they are doing the compulsory work experience unit HT009A. HTOO9A is a compulsory unit but it is not HECS liable and has no credit point weighting. All Hawkesbury vocational courses requiring work experience have such a unit. Students are required to complete HT009A at any time before the completion of the Diploma requirements. Most students do HTOO9A as a block of 20 days but some, like Mr Grice, choose work experience that stretches over more than 20 weeks and therefore over more than one semester. The other subjects which Mr Grice did in 1997 were the ones required for completion of the Diploma.
17.Ms Stevens explained that the UWS [University of Western Sydney] enrolment system requires that students who have not preselected a program are enrolled in a dummy program which is subsequently altered in the system when they select their real program. The inclusion of the entry for 'DUMM24' on the academic details provided by UWS to Centrelink for Mr Grice was a dummy program, and the details of that entry, namely 27 February 1997 as 'Date withdrawn' and 'Workload' under the heading 'Selection reason' are the way the computer deals with a dummy program. The students simply enrol in their program, and Mr Grice would have had no idea that he was notionally 'withdrawn' from a dummy program.
18.Ms Stevens checked Mr Grice's academic records and said that he first enrolled in HT009A in Spring Semester 1996. He enrolled again in Autumn Semester 1997 and Spring Semester 1997 and submitted the report on 9 October 1997. The result was put through in early December 1997. The system recorded the grade of 'N – result pending' for Spring Semester 1996 and when Mr Grice submitted the report the result was backdated to Spring Semester 1996 as it appears on his Academic Record. Once that happened, the enrolments for Autumn Semester 1997 and Spring Semester 1997 were changed by the administration to 'withdrawn without penalty'.
19.The tribunal asked Ms Stevens about the advice which she ordinarily gives students concerning their programs and AUSTUDY. Ms Stevens said the Hawkesbury Students Association gives AUSTUDY advice. Her practice is that when students come to her with a program of less than two or three subjects she suggests that they check their AUSTUDY eligibility. While she cannot recall what she might have said to Mr Grice, she probably would have noticed his program and told him to find out about AUSTUDY. It is up to the students to find out about their eligibility, and her role is to deal with the academic part of their enrolment." (T2, pp6,7)

Based on the information provided to it by Ms Stevens, the SSAT determined that CHE was a full semester subject. The SSAT accepted the concept of the standard student load for the Diploma in Horticulture reflecting the requirement to undertake CHE which involved a greater time commitment and consequent impediment than other units to part-time paid work and other units in the course. For both the Autumn and Spring semesters in 1997, the SSAT found that Mr Grice was enrolled and undertaking three subjects which is more than two thirds of the normal amount of full-time work required for a semester in the diploma course. The SSAT concluded that Mr Grice was a full-time student for the purposes of Regulation 34(1) and was therefore eligible for AUSTUDY in 1997, thus resulting in the amount of $3,724.71 paid to Mr Grice being considered as AUSTUDY and not an overpayment and accordingly, not a debt.
On 23 March 1999, the Applicant made an application for review of the SSAT's decision stating:
"The SSAT failed to apply Regulation 41 of the AUSTUDY Regulations.
The SSAT incorrectly applied Regulations 34, 35 and 36 of the AUSTUDY Regulations." (T1 p2)

EVIDENCE OF MR GRICE:

Mr Grice informed the Tribunal that a number of facts which were contained in the Applicant's Statement of Facts and Contentions were inaccurate.
In 1996, while Mr Grice acknowledged that he had been recorded by the University of Western Sydney as having failed Horticultural Practice 1, he had actually enrolled in this subject, but had not completed it. This was recorded as a failure despite him not even completing the course.
In relation to the University of Western Sydney results notification which the Review Officer had regard to in considering whether or not an overpayment of AUSTUDY had been made, the Review Officer had regard to results which recorded that two subjects had been completed in each of the Autumn and Spring semesters but that on 27 February 1997, Mr Grice had withdrawn from a course "DUMM24" without penalty. Mr Grice informed the Tribunal that he had not withdrawn from anything. Mr Grice referred to a statement from the Nursery Manager of Greening Australia, who advised that Mr Grice was involved in 1997 during the Spring and Autumn semesters undertaking work on a community nursery at Doonside and was also involved in the tasks of:

Seed processing, that is, cleaning, storage and record keeping.
Propagation of indigenous native plants; seed germination and cuttings.
Potting up and maintenance of native seedlings.
Weeding maintenance around the nursery.
Grading of plants for field plantings.

This was evidence that Mr Grice was certainly involved and active in his CHE component of the course which he had undertaken with Greening Australia (T3 p13), he told the Tribunal. Mr Grice further referred the Tribunal to a "Notification of Results – Diploma in Horticulture" issued on 21 July 1997 by the University of Western Sydney which indicated that in the Autumn semester 1997, Mr Grice had passed Plant Biology 2 and Horticultural Practice 1 and there was a result pending for Commercial Horticultural Experience (T3 p11).

Mr Grice told the Tribunal that while the CHE was to be completed over 20 days, Mr Grice considered that for his purposes it would be beneficial to do this course over the 20 week period, one day per week spanning both semesters. Mr Grice explained that access to Greening Australia's resources was vital in both the Autumn and Spring semesters of 1997 for successful completion of this course. Doing the CHE vocational studies over both semesters formed a most valuable and valid link between Mr Grice and what he termed "a real world enterprise". Mr Grice was given access to a more varied education which he considered was essential to the completion of the course. Mr Grice was further of the view that quite apart from the value to all of his core subjects in the Autumn and Spring semesters by spanning CHE over those semesters, it would have been very difficult to complete 20 day's work experience in addition to the requirements of the other core subjects in one semester. Mr Grice contended that he was committed to full-time study for the 1997 year. Thus, while Mr Grice was not disputing the contents of the University result sheets of 19 December 1997 (T15), he did dispute the notation that he had withdrawn. This was simply incorrect.
Mr Grice informed the Tribunal that he had not realised until the SSAT hearing, that the course reported as "DUMM24" was in fact only a notional course used to administratively reflect that Mr Grice had not completed his CHE in the 1996 study year and to enable the CHE, which was in reality completed in the 1997 year, to be credited to the 1996 year. Administratively, the University recorded that Mr Grice had withdrawn from the DUMM24 course [CHE] and that this was in fact credited to the 1996 study year.
Mr Grice informed the Tribunal that he had spoken to Ms Mandy Stevens, the co-ordinator at the School of Horticulture, University of Western Sydney, to ascertain if he could receive AUSTUDY while repeating subjects he had failed in previous years. Referring to Ms Stevens' evidence to the SSAT that it is her practice to inform students to check their AUSTUDY eligibility directly with AUSTUDY when they come to her with enquiries about subjects, particularly when the students have two or three subjects, Mr Grice indicated that Ms Stevens had provided him with advice that he should check his AUSTUDY qualification, given the number of subjects he was undertaking. Having received this advice, Mr Grice was unable to recall for the Tribunal whether or not he had made any direct enquiries to AUSTUDY following Ms Stevens' recommendation.
Mr Grice's flatmate in early 1997, Ms L Evans, had at some point telephoned AUSTUDY on Mr Grice's behalf. From evidence provided to the SSAT, which Mr Grice told the Tribunal was truthful, it appears that Ms Evans spoke to an AUSTUDY official requesting advice as to Mr Grice's eligibility for AUSTUDY in the circumstances of him having to repeat two core subjects each semester and having to undertake 20 day's work experience. Ms Evans' understanding of the advice provided by AUSTUDY was that Mr Grice was entitled to this allowance and she relayed this advice to Mr Grice.
Mr Grice was very clearly of the view that CHE had a workload value because it was meaningful and an integral part of his course. He was fully occupied and he believed that these circumstances constituted full-time study for AUSTUDY purposes.
In relation to the 1997 Continuing Claim for AUSTUDY, it is not clear whether Mr Grice attached subject information as is required and noted on the form. Mr Grice did agree that in terms of the AUSTUDY Eligibility Check form which he completed and was received by the Department on 17 July 1997, he did not at Question 8 provide any details of his current 1997 study details including the subjects he was undertaking in Semester 1 and Semester 2 or their rating points (T10 p39).
Mr Grice was questioned about the other circumstances in his life. At the time of the hearing, Mr Grice was working part-time at the Australian Wildlife Park five days per week from 6am to 10am, earning approximately $237.00 per week. He was paying $80.00 per week in rent and had three superannuation policies. The first policy, which is worth approximately $2,800.00 had no possibility of Mr Grice withdrawing funds from it as he had already done so because he had been unemployed and needed additional funds. A second policy contained an approximate amount of $500.00 and Mr Grice told the Tribunal that he may be able to access some of these funds but had not made any enquiry. The third policy has only recently commenced with the commencement of Mr Grice's employment at the Australian Wildlife Park and he did not believe that, if he was able to access these funds, there would be very much in the fund.
Mr Grice told the Tribunal that his mother has helped him to purchase a car which cost about $1,200.00 and he is expected to repay this. Mr Grice informed the Tribunal of his recent unfortunate circumstances in having been burgled, his car having been stolen and his valuable welding equipment also having been stolen in October/November 1999.
Mr Grice told the Tribunal that he has no credit card debts although he does owe money to a Gas Company in the amounts of $550.00 and $117.00. Mr Grice told the Tribunal that he does not have a great deal of money and he did not know how he would manage having to repay the overpayment of AUSTUDY should the Tribunal reverse the SSAT's decision.
A great concern to Mr Grice is the health of his younger brother who has had chronic and severe kidney disease for seven years. Mr Grice's brother has suffered renal failure and during 1997 was requiring frequent renal dialysis. Mr Grice further explained to the Tribunal that during 1997, his brother was at his worst and Mr Grice would be constantly calling in to assist him in whichever way he could, whether this was with the dialysis procedure, helping around the house, undertaking shopping or generally providing support. Whilst acknowledging that he was not a formal carer for his brother, Mr Grice stated that the care which he provided to his brother was both time consuming and extremely stressful. Mr Grice further noted that within his family, which consists of another brother and a sister, he is the person who usually takes on the care of the other family members. Mr Grice acknowledged, however, that his mother was also a great support for him.
SUBMISSIONS:
Mr Pearson referred the Tribunal to the fundamental point that CHE was not HECS rated and while it is possible to apportion workloads of courses which span semester breaks and calendar years, as dealt with in Department of Employment, Education, Training and Youth Affairs v Moore (1998) 50 ALD 980 and in Department of Employment, Education, Training and Youth Affairs v Gray (1999) 91 FCR 254, there is no provision in the AUSTUDY Regulations for the separate assessment of subjects which are HECS rated and those which are not.
Referring to Regulation 35, which deals with the normal amount of full-time work, Mr Pearson contended that this related to a course, not individual subjects or a part of a course. Thus, a course must be characterised "overall" in relation to the tests in Regulation 35(1) or 35(2), and person's workload calculated accordingly. What the SSAT did, incorrectly, Mr Pearson submitted, was to give a HECS weighting to CHE that cannot have any such weighting because Regulations 35(1) and 35(2) talk about courses, not subjects.
In such circumstances, Mr Pearson contended that there is no possibility nor scope for the inclusion of CHE towards the calculation of Mr Grice's workload for 1997. While CHE does form a compulsory part of the overall course, it did not carry any HECS rating. The usual requirement, by the University of Western Sydney and as indicated by Ms Stevens, is that the CHE component be undertaken simultaneously with the workload of the four core full-time subjects per semester.
Mr Pearson submitted there is no dispute that Mr Grice had to do the CHE component nor that he in fact completed it. What is contended by the Respondent is that the normal workload is to undertake eight subjects and the CHE was on top of this. It is not for the SSAT or the Tribunal to put itself in place of the University of Western Sydney to find that CHE "had been left out" and needed to be given some weight, Mr Pearson submitted.
The approach taken by the SSAT was that it attributed a value to the component CHE based on Regulation 34(2). Referring to paragraph 25 of the SSAT's decision (T2 p8), Mr Pearson submitted that the SSAT had given CHE the value of one subject, thus calculating that over the Autumn and Spring semesters, Mr Grice undertook five subjects to complete the Diploma in Horticulture and Mr Grice's choice of work experience for CHE required him to work over two semesters to accumulate the required 20 days and to write the report. Therefore the SSAT concluded that Regulation 36(1)(a) applies to Mr Grice. This approach, Mr Pearson submitted, results in CHE being counted twice and having an exaggerated value compared to the core subjects undertaken. In this regard, Mr Pearson contended that despite the CHE component lasting only 20 days, it was given the same value as a full semester course. In the Respondent's written submission, the contention put to the Tribunal is:
"Aside from there being no legislative authority for this, the result is more anomalous or unconscionable than if the subject were not included in the calculation of the respondent's work load at all." (A1 p4)

Mr Pearson provided the Tribunal with possible scenarios of attaching a notional, but realistic, value to CHE by working out a HECS equivalent rating using the appropriate formula (Exhibit A2). Using the SSAT's arguments, Mr Pearson submitted that the SSAT considered Mr Grice was undertaking two semester courses and his CHE. At paragraph 27 of the SSAT's decision it concludes that that equals four units per semester and arrives at the conclusion that that equals three-quarters of the work, where CHE equals one unit. The correct calculation, Mr Pearson contended, is to ascribe to semester 1 that Mr Grice is doing two and a half units and for semester 2, he is doing two and a half units (Transcript Extract, pp5,6,7). Approaching it this way, Mr Pearson contended that Mr Grice would still have a HECS rating below the three quarters requirement of Regulation 34(2) and the two thirds rating required by Regulation 36. Mr Pearson reiterated his point that the combined HECS loading of Mr Grice's core subjects which he undertook in each semester, represented only half the usual amount of full-time work for the course per semester.
Mr Pearson contended that Mr Grice was not, in these circumstances, a full-time student in either of the semesters of 1997 and, accordingly, was not entitled to AUSTUDY for that year.
The overpayment raised, allowed an entitlement to AUSTUDY from 1 January 1997 to 26 February 1997, having been assessed on the basis that Mr Grice had withdrawn from a full semester course from 27 February 1997. Mr Pearson submitted that in fact the overpayment commenced from 1 January 1997 as there had been no withdrawal from any course on 27 February 1997. The reality was that the University had, for administrative purposes, notionally withdrawn Mr Grice from course "DUMM24" but assigned points to that course commencing in 1996. In such circumstances, as there had been no withdrawal from any course, Mr Grice had no entitlement to AUSTUDY 1 January 1997 and thus that date was the commencement of the overpayment. The amount of AUSTUDY paid to Mr Grice between 1 January 1997 and 26 February 1997 is $1,096.61 and accordingly, the overpayment of AUSTUDY to Mr Grice was comprised of this amount, $1,096.61 and the amount of AUSTUDY calculated from 27 February 1997 of $3,724.71.
If the Tribunal were to find that Mr Grice was undertaking full-time study, then Mr Pearson contended that the Tribunal would have to consider Regulation 41, which is relevant to determining the time limits on previous study. Mr Pearson submitted that AUSTUDY Regulation 41 provides that a person can only receive AUSTUDY for the minimum time for the course plus half a year. Thus, if a person is enrolled in a year long subject or that person's further progress in the course depends on his or her passing a "whole year's work in the course", a further year is permitted. The minimum time completion of the Diploma of Horticulture course is two years and Mr Grice was enrolled in semester long subjects in 1997. Accordingly, Mr Grice could only obtain AUSTUDY for the Autumn semester of 1997, even if he were held to be studying full-time for that year. This issue was not addressed by the SSAT, Mr Pearson noted. On this point, Mr Pearson referred the Tribunal to Re Sweet and Department of Employment, Education and Training (AAT 8907, 8 July 1993) and Re Iovino and Secretary, Department of Employment, Education, Training and Youth Affairs (AAT 11514, 24 December 1996).
Turning to the issue of the recovery of the overpayment debt, Mr Pearson submitted that there was no sole administrative error by the Department which caused the overpayment. The overpayment was caused as a result of information provided to the Department in the Tertiary Enrolment Check Referral Report which indicated that Mr Grice had withdrawn from a course. Any error was on the part of the University of Western Sydney and also because of Mr Grice's informing that he was studying full-time when in fact he was not. Therefore, Mr Pearson submitted that waiver was not available under section 289 of the Act. Further, Mr Pearson noted that in July 1997, when Mr Grice had the opportunity of advising of his subjects, he did not complete the application which could, if the Department had such information, have raised the difficulties with his workload earlier and perhaps an earlier detection of the overpayments. Payments of AUSTUDY were made to Mr Grice on the basis of his indication that he would be a full-time student in 1997 in accordance with the "self-assessment" system, but subject to the re-assessment provisions of Regulation 12C and 12E should this information later be discovered to be incorrect, as was the case in Mr Grice's circumstances.
In relation to whether or not waiver was available to Mr Grice under section 290C, which considers special circumstances, Mr Pearson noted that Mr Grice had experienced and continued to experience distressing issues with the health of his brother, but submitted that this had no bearing on the existence of the overpayment debt. Currently, Mr Grice is employed and his finances have improved. In this regard Mr Grice is receiving $237.00 net per week for his part-time work, he pays $80.00 to $100.00 in rent and has no major debts and at this stage has not been required to repay his mother for the purchase of his car. Therefore, Mr Pearson submitted that while Mr Grice's financial circumstances might be tight, they were by no means straitened and his other circumstances including having been robbed and his brother's health, while understandably distressing to Mr Grice, did not amount to special circumstances in the legislative sense.
Accordingly, Mr Pearson submitted that the SSAT's decision should be set aside and in substitution the Tribunal should decide that Mr Grice had an overpayment debt of AUSTUDY commencing on 1 January 1997 to 10 September 1997 and that this debt should be recovered in full.
Mr Grice contended that the SSAT's decision should be upheld. He submitted that CHE was an integral part of his course and during 1997 the completion of this with his four core subjects meant that he was working full-time. Mr Grice contended that he could not have completed his 20 days CHE in one semester and indeed it was for him important to complete the CHE over the two semesters as the experience from this component of the course was intricately related to his study in the four core subjects. In this regard, Mr Grice referred the Tribunal to Ms Steven's evidence to the SSAT that to have completed CHE in one semester would have caused difficulties which would affect the successful completion of his other subjects.
Mr Grice submitted that with the benefit of hindsight, if he had known of the way the University of Western Sydney had treated his CHE component and the use of the notional course DUMM24 and the administrative practice of withdrawing students from courses, he would not have applied for AUSTUDY as he would not have wanted to have gone through this overpayment situation.
Mr Pearson in conclusion to Mr Grice's submissions submitted that Mr Grice had studied in 1997 because he had failed four subjects and was required to pass them in order to pass his Diploma of Horticulture. Further, Mr Pearson concluded that it was Mr Grice's choice to do CHE at that time. He could equally have undertaken CHE in either of the first two years of study.
FINDINGS:

The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the submissions and by applying the legislation, regulations and case law.
Mr Grice was cooperative, provided frank evidence and the Tribunal considers him to be a truthful witness.
The Tribunal first considers the issue of whether or not Mr Grice was a full-time student for the purposes of AUSTUDY.
Mr Grice had failed a number of subjects in 1995 and 1996 in his two year Diploma of Horticulture course. As a consequence, he had to repeat subjects in a third year, undertaking two subjects in each of the Autumn and Spring semesters. In addition, Mr Grice had to complete a 20 day work experience component, CHE. Mr Grice could have completed this work experience component in either years one or two, but chose to do it in his third year. The CHE component does not attract a HECS rating. At the time in 1997, prior to his application for continuing AUSTUDY, Mr Grice had spoken to Ms Stevens, the co-ordinator of the course, and she had given him advice. In relation to his qualification for AUSTUDY, it was Ms Stevens evidence to the SSAT that in general when students had two or three subjects, she advised them to seek direct advice from AUSTUDY as to whether or not they were qualified to receive that allowance. Mr Grice confirmed that Ms Stevens had given him this advice but he could not recall whether he himself made a direct approach to AUSTUDY. His friend at the time, Ms L Evans, did seek advice from AUSTUDY about Mr Grice's situation. It is not clear to the Tribunal, however, as to whether or not Ms Evans' discussion with AUSTUDY accurately reflected Mr Grice's circumstances and accordingly the Tribunal is doubtful whether the adviser providing information to Ms Evans about AUSTUDY eligibility was fully informed of Mr Grice's precise circumstances and therefore whether or not it was accurate advice.
The Tribunal accepts that at the time in early 1997 and continuing, Mr Grice was experiencing great stress in relation to his brother's health and his role in attempting to assist him. This evidence provided by Mr Grice was not disputed by the Respondent.
The Tribunal notes that Mr Grice genuinely believed he was undertaking full-time study and the information he provided to the Department was given in consideration of his belief. There is no suggestion, the Tribunal finds, that Mr Grice knowingly made a false statement or knowingly failed or omitted to comply with any provision of the Act.
The Tribunal notes that at the time of his application for AUSTUDY on the evidence available to the Tribunal, Mr Grice did not attach any details of his subject list or their HECS ratings. If such information was provided, the Department did not act upon this. Further, when Mr Grice completed his AUSTUDY eligibility check in July 1997, he did not complete the subject list. The Tribunal finds that both Mr Grice and the Department therefore failed to attend to their respective responsibilities. Mr Grice in that he did not fully inform the Department of his subject list and certainly if this had been done at the commencement of his course or in July for the eligibility check, the Department may have been alerted to the nature and extent of his studies. On the Department's part, if it had checked Mr Grice's workload when he initially submitted his continuing AUSTUDY claim or indeed when he submitted his AUSTUDY eligibility check, then the Department may have been alerted to the discrepancy between the claim for full-time work and the actual subjects being studied. The Tribunal is concerned that at the time the AUSTUDY eligibility check was undertaken, as part of a review process, the Department did not complete the review as it should, by failing to follow up on the lack of information in Question 8 of the AUSTUDY Eligibility Check form. Thus the Tribunal finds that there were errors committed by both parties.
Having reviewed the Regulations and Ms Stevens evidence, the Tribunal does not consider that the SSAT is correct in its assigning a HECS rating to CHE of one whole subject. Thus, the Tribunal finds that the SSAT's conclusion that Mr Grice was enrolled in and undertaking three subjects causing it to give a greater than two thirds of the normal full-time workload, is not a correct conclusion.
The Tribunal considers that CHE attracts no HECS rating as was determined by the institution of the University of Western Sydney which is best placed to make a determination on such matters. It was expected by the institution that CHE would be completed along with and at the same time as the 16 core subjects were completed over the duration of the two year course. Further, it was not a requirement that the CHE be undertaken over two semesters, but Mr Grice's choice. While the Tribunal accepts the logic and reason behind Mr Grice's undertaking his CHE over two semesters in 1997, it was not a requirement by the institution.
Even if the Tribunal accepted a notional HECS rating for CHE, the Tribunal considers that it would be more appropriate and adopts the proposed scenario of the Department contained in Exhibit A2. As such, Mr Grice would not reach the required level to reflect full-time work for the purposes of AUSTUDY Regulations as required by Regulation 34(2) and Regulation 36. The Tribunal considers that the HECS loading for each of the core subjects undertaken by Mr Grice during each semester of 1997 represented only half of the workload required for full-time study. Accordingly, the Tribunal finds that Mr Grice was not a full-time student in the Diploma of Horticulture course in either the Autumn or Spring semesters of 1997.
The Tribunal further finds that the commencement of the overpayment of AUSTUDY is 1 January 1997 as the administrative practice of the University to deal with students' completion or non-completion of particular components of the course by withdrawing students without penalty from nominal courses, did not accurately reflect Mr Grice's situation. Thus the notional withdrawal of Mr Grice from a course on 27 February 1997 did not accurately reflect Mr Grice's situation. In such circumstances the Tribunal finds that the total overpayment of AUSTUDY made to Mr Grice is $4,821.32.
As the Tribunal has found that Mr Grice was not undertaking full-time study, it does not have to apply the provisions of Regulation 41.
The Tribunal now turns to consider the issue of recovery of the AUSTUDY overpayment. In relation to section 289 of the Act, the Tribunal does not consider that there is sole administrative error. The Tribunal has already found that there was error on the part of both the Department and Mr Grice. The Tribunal further finds that the University of Western Sydney's administrative practices in relation to withdrawing students from courses is fraught with difficulty and danger as has been evidenced in Mr Grice's circumstances. The consequences for Mr Grice in relation to his AUSTUDY having been withdrawn from a course when the Department seems not to have been aware of this administrative practice, has been dire. The Tribunal is most concerned that this administrative practice seems to have occurred without any knowledge or reference to the Department nor the student. The lack of communication in this regard is an issue which hopefully will be addressed between the Department and the University, with students being informed of such administrative practices.
That there were errors committed by the Department, Mr Grice and noting the University's administrative practices precludes the application of section 289 in this matter, and the Tribunal so finds.
Turning to the issue of special circumstances as provided for in section 290C of the Act, various tribunals and courts have considered what is meant by special circumstances. The Tribunal takes the view that circumstances which are unique, exceptional or unusual and which if ignored, would produce an unjust or unfair result are considered to be special in the legislative sense. The Tribunal also considers that while straitened financial circumstances alone cannot be considered special, it is important to look at the constellation of circumstances surrounding a particular person and that those circumstances in combination must be considered.
The Tribunal accepts that Mr Grice experienced great distress in relation to the health of his brother during 1997 and that this distress caused not only emotional upset but also had an impact on Mr Grice's time as he was taking responsibility for many aspects of the care of his brother with his severe and chronic renal disease. The Applicant submitted that whilst this distress was real, it had no impact upon the raising of an overpayment of AUSTUDY. The Tribunal is of the view that because of the distress and time required to care for Mr Grice's brother, he was less attentive to his own situation, particularly as it related to his responsibilities in relation to his application for AUSTUDY and properly seeking advice as to his qualification. As a consequence, the Tribunal considers that Mr Grice was less attentive to his own personal circumstances which meant that he did not properly inform himself about AUSTUDY and the consequences of this were that he did not fully inform the Department of his situation. Had he been more attentive to detail and also sought direct advice himself from AUSTUDY, then this matter may not have arisen.
In relation to Mr Grice's other circumstances, the Tribunal does not consider that his finances, while tight, are exceptional or unique and accordingly does not consider that this is a special circumstance.
The Tribunal considers that the Department has some responsibility in this matter in the manner in which the debt arose. In this regard, the Tribunal considers that the Department should have more fully assessed the claim for continuing AUSTUDY in February 1997 and further, when Mr Grice submitted his AUSTUDY Eligibility Check in July, the Department should have followed its own review processes and followed up the non-provision by Mr Grice of information regarding his subjects. If these checks had been done earlier, the debt may not have arisen or it may have been reduced.
The fact that the University of Western Sydney has an administrative practice of enrolling and withdrawing students from the notational courses has implication in terms of those students' AUSTUDY applications. Mr Grice provided unchallenged evidence that had he been aware of this practice and the difficulties associated with it, he may not have applied for AUSTUDY at all. In such circumstances, the administrative practices of the University, without recourse to the students nor it seems the Department, is also considered a special circumstance by the Tribunal and had impact in the way in which the AUSTUDY overpayment occurred.
Accordingly, for the reasons expressed above, the Tribunal finds that in Mr Grice's circumstances there are matters which can be considered to be special and which are unusual and unique and if not taken into account, would produce an unfair result in relation to the AUSTUDY overpayment. Thus, the Tribunal determines that section 290C of the Act has application to Mr Grice's circumstances.
Turning to the issue of whether the overpayment should be waived in part or as a whole, the Tribunal does not consider it appropriate in all of the circumstances and given the evidence, that the entire debt should be waived. Because of the contribution to the manner in which the debt arose by particularly Mr Grice and the Department, the Tribunal considers that in such circumstances it is appropriate to waive half of the debt.
Accordingly, under section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor decides that:
(1)an overpayment of AUSTUDY in the amount of $4,821.32 is owed by Mr Grice arising from the payment of AUSTUDY between 1 January 1997 and 20 September 1997; and that
(2)one half of the debt be waived pursuant to section 290C of the Act because of Mr Grice's special circumstances.
The Tribunal recommends that the recovery of the remainder of the debt be undertaken by way of instalments commensurate with Mr Grice's ability to pay and that this should be assessed from time to time.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of:
Ms S M Bullock, Member
Signed:         .....................................................................................
  Associate
Date of Hearing  24 March 2000
Date of Decision  1 August 2000
Representative for the Applicant            Mr A Pearson, Solcitor,
  Australian Government Solicitor
Representative for the Respondent       Mr Grice was self-represented