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

[2008] AATA 471

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 471

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5627

GENERAL ADMINISTRATIVE DIVISION		)
Re		ELNAZ HANSEN

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date6 June 2008

PlaceSydney

Decision The decision under review is set aside and in substitution thereof the debt raised against Mrs Hansen is reduced by a sum of $360.00. Therefore, the total debt to be repaid by Mrs Hansen is $2,034.32.

.....................[sgd]...........................

Ms N Isenberg
  Senior Member
CATCHWORDS - Social Security – Austudy – debt due to the Commonwealth – whether debt should be waived - special circumstances.

Social Security Act 1991 – sections 1237A, 1237AAD

Groth v Secretary, Department of Social Security (1995) 40 ALD 541

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

Secretary, Department of Social Security v Hales (1998) 82 FCR 155

Davy v Secretary, Department of Employment & Workplace Relations [2007] AATA 1114

Beadle v Director-General of Social Security (1985) 7 ALD 670

Angelakos v Secretary, Department of Employment & Workplace Relations [2007] FCA 25

REASONS FOR DECISION

6 June 2008 Ms N Isenberg, Senior Member

DECISION UNDER REVIEW

1.      Mrs Hansen seeks review of the decision of the Social Security Appeals Tribunal (“SSAT”), dated 18 October 2007, which affirmed the decision of a Centrelink Authorised Review Officer (“ARO”), dated 20 July 2007, to raise and recover a debt of $2,394.32 for overpayment of Austudy.

2.      Mrs Hansen transferred from Newstart Allowance to Austudy on 25 August 2006 when she enrolled in an Advanced Diploma of Accounting course on a full time basis at TAFE Ultimo. On 6 February 2007 Centrelink asked Mrs Hansen to provide information that would allow Centrelink to check its records against those of the TAFE she was attending. Mrs Hansen provided the requested information, and on 19 March 2007 a debt was raised on the basis that Mrs Hansen did not meet the requirements for that payment as she had “an insufficient study workload” and therefore was not entitled to Austudy from 25 August 2006. On internal review the overpayment was recalculated, and it was decided Mrs Hansen was not entitled to Austudy from 4 September 2006.

ISSUE BEFORE THE TRIBUNAL

3.      Mrs Hansen conceded that she had been overpaid $2394.32 Austudy during the period 4 September 2006 to 3 December 2006. It therefore remained to be determined if there were any reasons why the debt should not be repaid.

LEGISLATION

4.      The relevant legislation in this matter is the Social SecurityAct1991 (“the Act”) in particular sections 1237A and 1237AAD.

THE HEARING

5.      I had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 (“the T-documents”), which I took into evidence. Documents were also tendered by Mrs Hansen and these are noted in Annexure A.

6.      Mrs Hansen gave oral evidence and was cross-examined on behalf of Centrelink. I also asked her questions. Mr Hansen also gave evidence and assisted in the presentation of the Applicant’s case.

CONSIDERATION OF EVIDENCE AND FINDINGS

7.      A debt to Centrelink may be written off in limited circumstances, such as when it cannot be repaid. Mrs Hansen currently receives Newstart Allowance from which $15 per fortnight is deducted to repay the debt. Therefore she has the capacity to repay the debt.

8. A debt may also be written off if it is attributed solely to Centrelink’s administrative error (section 1237A of the Act), but there is no suggestion that this is the case in this matter.

9. Section 1237AAD of the Act provides potential relief from requiring a person to repay any or all of a debt, by giving discretion to waive any or all of that debt in “special circumstances” other than financial hardship alone. I must also be satisfied the debt did not arise as a result of the Applicant knowingly making a false statement or representation or because there was a knowing failure to complying with the Act. Centrelink conceded that Mrs Hansen had not made any false statements to Centrelink nor has she knowingly failed to comply with the Act.

10. The Act provides no guidance as to the meaning of the term “special circumstances” in section 1237AAD of the Act. In Beadle v Director-General of Social Security (1985) 7 ALD 670, the Full Federal Court stated that it was not possible to lay down precise limits or precise rules for the meaning of the term. The Court indicated that this would depend upon the circumstances of each particular case but commented that, even though the term lacks precision, it was sufficiently understood “not to require judicial gloss” (at 674). There, the Court affirmed the decision of the Tribunal (Re Beadle and Director-General of Social Security (1984) 6 ALD 1) where (at 3) the Tribunal had acknowledged that the term was “incapable of precise or exhaustive definition” and that, to be special, the circumstances “must have a particular quality of unusualness that permits them to be described as special”. See also Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25 per Besanko J at [33].

11.     In Groth v Secretary, Department of Social Security (1995) 40 ALD 541, Kiefel J, after referring to the Federal Court's decision in Beadle’s case, observed (at 545) that special circumstances:

… would require something to distinguish... [the]… case from others, to take it out of the usual or ordinary case. … It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.

Evidence was given about several aspects of Mrs Hansen’s personal circumstances which were said to be “special”.

Mrs Hansen’s health

12.     Mrs Hansen provided a number of letters from her treating doctors. It would appear that throughout 2007 (and continuing) Mrs Hansen has had a number of health issues.

·She complained of pain on the left side of her skull and headaches, which upon extensive investigation, were diagnosed as Type 1 left dural arterial venous fistula, which is an aberrant opening between the brain sac and the connection between arteries and veins. This was also described as a thrombosis in the neck. Full examination of this condition has been delayed by her pregnancy.

·Mrs Hansen has been diagnosed with pulsatile tinnitus, in which she hears a “rubbing” sound in her ear. This is likely to be connected with the artery problem in Mrs Hansen’s neck and may be a serious problem. Tinnitus is a condition known to be untreatable.

·Mrs Hansen has been diagnosed with eccentric central serous retinopathy, a condition which results in distorted vision. She spoke of a blind spot in her vision. She was told that the condition could be expected to resolve within six months, but it did not do so. Because of her pregnancy she is unable to undergo further investigation. She is apparently at risk of lasting problems such as decreased night vision, colour discrimination problems, and some distortion. About 50% of patients suffer a severe form of the disease and Mrs Hansen is worried that she will go blind. She has been told that there is also a high risk of blindness if there is surgical intervention.

·She was diagnosed as having allergic rhinitis as a result of severe dust mite and pollen allergy. This limits where she can live as she cannot tolerate carpeted premises. She is also to be investigated for possible asthma.

·She has been undergone bi-lateral breast reduction to alleviate her neck, back and shoulder pain.

·She has had a haemorrhoidectomy.

·She had an unexplained rash for a year.

·She underwent infertility investigations and said she was found to have ovarian cysts. However, she is now pregnant. It is likely that she will have to have a caesarean section to avoid pressure on her eye and (neck) artery.

·As a result of her multiple medical problems, family problems and the insalubrious nature of their present (Housing Commission) accommodation she is consulting a psychologist. She was prescribed Endep, an anti-depressant, but no longer takes it because of her pregnancy.

Financial problems

13.     Mr and Mrs Hansen provided a budget planner which set out the family’s income and expenses. Mrs Hansen now receives Newstart Allowance and Mr Hansen is on Austudy. In total they receive approximately $1,560 per month. From this Mrs Hansen repays the present debt at the rate of $30 per month and Mr Hansen repays a Centrelink advance of $500 at the rate of $70 per month.

14.     Mrs Hansen’s debt to Centrelink presently stands, I was informed by the Centrelink advocate, at $1,959.33.

15.     Their rent and other expenses were all reasonable, and were not challenged. Their estimate of groceries, at $300 a month, was probably conservative. Currently their monthly expenses exceed income by about $165 per month. Mrs Hansen must consult specialists for her various medical conditions and has had several expensive investigations and more are foreshadowed. For example, she must have an MRI every six months to monitor possible changes in her neck artery, and angiograms in relation to her eye.

16.     Mr Hansen said they have credit card debt of about $18,000 and they have borrowed money from their family. He has a HECS debt of approximately $15,000 - $18,000 arising from his nursing studies. Mr Hansen said that next semester, although studying full-time, he will not be eligible for Austudy, having reached the maximum support period. He will seek Newstart Allowance, but will have difficulty looking for work because he will be a full time student. An additional problem in that regard is that there is a six week practical component - an unpaid hospital placement - which will prevent him from looking for work in that period. If he is unable to be paid Newstart Allowance, because of his inability to look for work, their combined income will be $800 per month.

17.     Their financial situation is likely to be exacerbated if Mr Hansen pursues his intention of undertaking an Honours degree which requires a further year of study. He thought this would enhance his career prospects.

Issues with TAFE

18. Mrs Hansen felt that TAFE at Ultimo had propelled her into an unsuitable course when she transferred from TAFE at North Sydney. Although the TAFE records were in a confused state, I accept Mrs Hansen knew that she was studying three subjects: Accounting 2, Commercial Law and Implementing Continuous Improvement. There was no dispute that in respect of each of those subjects she attended less than half the classes and that she failed each subject. She said she was sometimes drowsy due to medication (Endep) and would not feel like going to lectures. There was no evidence though that she sought a concessional study load, under section 569D of the Act, which may have reduced her obligation to attend.

19.     She also said that the law was too hard and her English was poor. She did not feel she needed to attend Accounting 2 because she had already studied it (although failed) at North Sydney. She said she had only previously passed Accounting 1 with the help of a friend. She knew her Austudy obligation was to attend full time.

Conclusion

20.     Taxpayers are entitled to expect that, in the ordinary course, money paid to Centrelink beneficiaries to which they are not entitled will be recovered: Secretary, Department of Social Security v Hales (1998) 82 FCR 155. More recently that approach was adopted in Davy v Secretary, Department of Employment & Workplace Relations [2007] AATA 1114, at [80]. Mrs Hansen has had the benefit of money to which she was not entitled. Some of the reasons for her failure to attend were related to her health, but there were other reasons which she gave as well. It was open to her to contact Centrelink so that her payments were suspended, or so that Centrelink could consider her entitlement to Newstart Allowance notwithstanding her health problems. She did not do so, and continued to collect Austudy well beyond when she ceased attending TAFE.

21.     On the other hand, I had information available to me which was not before the SSAT, especially in respect of Mrs Hansen’s extensive health problems, and I have taken these into account. I also had more information about the Hansen’s difficult financial circumstances which has not previously been considered, namely the extent of their debt and the cost associated with investigation of Mrs Hansen’s conditions. I noted too that, in the short term, their financial position may deteriorate further while Mr Hansen concludes his nursing studies.

22. Each matter is different. I have come to the conclusion that aspects of Mrs Hansen’s circumstances, taken together, are sufficiently special so as to justify waiver of part of the debt under section 1237AAD of the Act. I have decided that the sum of $360 is to be waived. This is approximately twice the monthly payments Mrs Hansen would have to repay between now and the end of the year, a period during which Mr Hansen will be continuing his undergraduate studies. The total to be repaid is therefore reduced to $2,034.32.

23.     I recommend that Centrelink consider suspending the current repayment arrangement until January 2009.

DECISION

24.     The decision under review is set aside and in substitution thereof the debt raised against Mrs Hansen is reduced by a sum of $360.00. Therefore, the total debt to be repaid by Mrs Hansen is $2,034.32.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member
Signed: ....................[sgd].....................................................
  Associate

Date of Hearing  28 May 2008
Date of Decision  6 June 2008
Appearance for the Applicant        in person, assisted by her husband

Appearance for the Respondent   Ken Bullock, Centrelink Legal Services

Annexure A

Statement of Mrs Hansen, undated

Statement of poor health condition of Mrs Hansen, undated

Budget Planner - Estimate of budget prepared by Mr Hansen, undated

Royal Prince Alfred Hospital Department of Radiology Medical Imaging Services report, dated 14 December 2007

Royal Prince Alfred Hospital Department of Radiology Medical Imaging Services report, dated 19 December 2007

Royal Prince Alfred Hospital discharge referral, dated 19 December 2007

Letter from Dr R Allan, dated 8 February 2008

Alfred Medical Imaging, report of Dr S Nagaratnam, dated 12 January 2007

Alfred Medical Imaging, report of Dr S McCormack, dated 8 May 2008

Letter from Dr M Dias attaching “K10” assessment survey of patient, dated 5 May 2008

Letter from Dr S Coogan, dated 23 April 2008

Letter from Dr W Gin, dated 30 September 2007

Letter from Dr W Gin, dated 30 January 2008

Letter from Dr C Retsas, dated 19 November 2007

Castlecrag Private Hospital notice, dated 21 November 2007

Castlecrag Private Hospital notice, dated 15 April 2007

Centre for Women’s Ultrasound and Fetal Medicine, report, dated 11 December 2007

St Vincent’s Clinic, report of Dr J O’Neill, dated 19 January 2007

Central Sydney Imaging, report of Dr P Depree, dated 30 January 2007

Specialist Magnetic Resonance Imaging, report of Dr G Parker, dated 19 September 2007

Concord Repatriation General Hospital appointment notice, dated 24 October 2007

Receipt for psychological services, dated 5 May 2008