Hills and Secretary, Department of Social Services (Social services second review)

[2016] AATA 161

Hills and Secretary, Department of Social Services (Social services second review) [2016] AATA 161 (18 March 2016)  

Division	GENERAL DIVISION
File Number(s)	2015/4693
Re	Kaye Hills
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Deputy President I R Molloy
Date	18 March 2016
Place	Brisbane

The decision under review is affirmed

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Deputy President I R Molloy

CATCHWORDS        

Recovery of debt – Austudy overpayment – waiver – whether administrative error – whether special circumstances – where applicant failed to notify Centrelink of change in circumstances – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 568, 569, 569A, 569C, 1223, 1237A, 1237AD

REASONS FOR DECISION

Deputy President I R Molloy

1. This is an application to review a decision of the Administrative Appeals Tribunal Social Services & Child Support Division dated 19 August 2015 affirming a decision to raise and recover a debt in the amount of $3,153.28 from the applicant Kaye Hills for social security payments made to her to which she was not entitled.

   ISSUES

2. There is no dispute as to Mrs Hills’ liability in respect of part of this amount, a figure of $1,025.00, paid to her for student start-up. Mrs Hills, I was told, has been repaying that sum by instalments.

3. The issues are whether the balance, $2,128.28, was paid to Mrs Hills in excess of her entitlement to Austudy for the period 22 December 2014 to 27 February 2015, and if so, whether this sum constitutes a debt due to the Commonwealth which should be recovered in whole or in part.

   Entitlement to Austudy payments

4. Under s 568 of the Social Security Act 1991 (Cth) (“the Act”) in order to qualify for Austudy a person must satisfy the activity test. Subsection 569(1) and s 569A of the Act provide that to satisfy the activity test, a person must (amongst other things) be undertaking qualifying study whilst enrolled in an approved course of education at an educational institution, must be a full-time or concessional study-load student, and must satisfy the progress rules.

5. Under s 569C of the Act a person is a “full-time student” in respect of a course if, in the case of a person who is enrolled in the course for a particular study period, the person is undertaking at least three quarters of the normal amount of full-time study in respect of the course for that period.

6. In 2014 Mrs Hills was in receipt of Austudy based on her studying full-time whilst enrolled at Open Universities Australia Tertiary Group B Course. She says in early December 2014 she sat the exams for the term just ending. She says ordinarily the exam results would be published about six weeks later.

7. Mrs Hills says that she continued with her studies in the following term. She says she was able to access her course online, and sat online exams in early January 2015. She says that towards the end of February 2015 she decided not to sit the end of term exams scheduled for 27 and 28 February and to withdraw from the course.

8. On 3 March 2015 Mrs Hills went to Centrelink to apply for Newstart allowance. She was told at Centrelink there was no record of her enrolment details. Mrs Hills obtained a print-out of her enrolment record and took it back to Centrelink without realising, she says, that it recorded withdrawal from all units of study on 22 and 23 December 2014. 

9. Mrs Hills says she was shocked when she discovered this especially as she had been studying, working on assignments, accessing her course online, and doing online exams in 2015 up until she decided to withdraw in the latter part of February.

10. Mrs Hills disputes that she withdrew from any units of study on 22 or 23 December 2014 despite what was recorded on the print-out. She does acknowledge, however, that for whatever reason, she had ceased to be enrolled by the latter date. I find that to be the fact based on the university documentation, Mrs Hills’ acknowledgement, and her other evidence, which I will come back to.

11. Mrs Hills therefore ceased to qualify for Austudy payments from 22 December 2014 as she was no longer enrolled in an approved course of education in full-time study so as to satisfy s 569A of the Act. Consequently Mrs Hills did receive Austudy payments in excess of her entitlements.

12. Section 1223(1) of the Act provides, relevantly, if a social security payment is made, and a person who obtains the benefit of the payment was not entitled to that benefit, the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.

13. I find that the Commonwealth has correctly calculated that Mrs Hills was overpaid Austudy payments and a student start-up allowance totalling $3,153.28. There is no dispute about the quantum. Nor, as I have said, is there any dispute about the Commonwealth’s claim to be repaid the student start-up component of $1,025.00. The issue then is the recovery of the excess Austudy payments.

    Recovery of overpayments

14. There are two situations under the Act that permit non-recovery of a properly raised overpayment of social security payments: waiver and write-off under Part 5.4.

15. First, s 1237A of the Act requires the Commonwealth to waive a right to recover a debt if it is attributable solely to administrative error by the Commonwealth and the person has received the payment in good faith.

16. The Secretary contends that the debt is not due to an administrative error by the Commonwealth but arose out of Mrs Hills’ failure to notify Centrelink that she had withdrawn from her course. I will return to this below.

17. Secondly, s 1237AD of the Act provides for the possibility of waiving all or part of a debt where it was not caused by a known false statement or failure to comply with the Act and if there are “special circumstances (other than financial hardship alone) that make it desirable to waive”.

18. Mrs Hills contends that in all the circumstances she should not be required to repay the overpayments in respect of Austudy. Her case is she received the payments in good faith, believing she was enrolled as a full-time student, and at time when she was in fact undertaking studies. I do not accept that version of events.

19. Having heard Mrs Hills, and observed her demeanour, I found her a less than satisfactory witness.  I also found aspects of her story quite implausible.

20. As I have said Mrs Hills claims that she did not withdraw from the course in December 2014 as recorded on the print-out of her enrolment details. She offered that her enrolment had been cancelled because she had failed her exams in early December.

21. When it was pointed out that her exam results for December would not have been available until mid-January, she quickly said her enrolment must have been cancelled for failure to pass earlier exams. She could offer no explanation why her enrolment record against each unit of study carried the notation “withdrawn” rather than “cancelled”.

22. She says she did not receive any notice prior to her enrolment being cancelled, or any notification afterwards. She says she has never checked her results for the exams she sat in December 2014. Her reason was she was too busy in January and February with her then studies.

23. She was not able to produce any evidence at all that she had been studying, working on assignments, or had undertaken exams in January/February 2015 as she claims. Her inability to produce study notes or anything else to support her claim to have been studying at this time was raised in previous reviews, and therefore was not a matter first raised in the Tribunal.

24. Mr Hills says she withdrew from the course in February 2015, but in response to several questions about how she did that, she would only say she went to Centrelink. I was left with the impression she was willing to tailor her story to fit the exigencies of the moment, or to stonewall if there was no better alternative.

25. I accept the Secretary’s submission that the overpayments of Austudy payments were not a consequence of any error on the part of the Commonwealth, but attributable to Mrs Hills’ failure to advise that she had withdrawn from her course in December 2014.

26. As I do not accept Mrs Hills’ version of events it unnecessary to consider whether those events, if true, would constitute special circumstances within s 1237AD of the Act.

    CONCLUSION

27. The decision under review is affirmed.

I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President I R Molloy

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Associate

Dated

Date(s) of hearing	4/3/2016
Solicitors for the Respondent	Sparke Helmore