Hills and Secretary, Department of Social Services (Social services second review)
[2016] AATA 59
•5 February 2016
Hills and Secretary, Department of Social Services (Social services second review) [2016] AATA 59 (5 February 2016)
Division
GENERAL DIVISION
File Number(s)
2015/3843
Re
Leigh Hills
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 5 February 2016 Place Perth The decision under review is affirmed.
....(Sgd) S Webb......................
Mr S. Webb, Member
CATCHWORDS
SOCIAL SECURITY – youth allowance – cessation of study – requirement to satisfy activity test - overpayment – debt - administrative error – compliance with notice – good faith – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 541, 1236, 1237A, 1237 AAD
Acts Interpretation Act 1901 s28A(1)(ii)
Social Security (Administration) Act 1999 ss 68, 68(2)
REASONS FOR DECISION
Mr S. Webb, Member
5 February 2016
After leaving school, Leigh Hills undertook a course of study at the Great Southern Institute of Technology (TAFE) in Albany. He claimed and was paid youth allowance. At the end of a course year, he ceased study in order to obtain an apprenticeship in Perth. He continued to receive youth allowance. After a time, his youth allowance payments were suspended and, sometime later, a debt was raised against him – a delegate of the Respondent Secretary decided that no part of the debt raised could be written off or waived. Mr Hills has challenged this decision, most recently before the (former) Social Security Appeals Tribunal, thus far without success. He has applied to this Tribunal for review.
During the hearing two issues arose that could not be properly addressed, in fairness to both parties, without additional information and related submissions being provided. In compliance with orders I made for this purpose, additional materials and submissions have been filed. I have had regard to these materials.
The new materials from the Secretary include printouts of Centrelink records that were not included in the documents filed under s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents). The document in Annexure A to the Secretary’s Post Hearing Submissions is a single page printout of a computer record of action apparently taken by a Centrelink officer on 24 December 2012 – “Reissued RA [rent assistance] form SU523”. This record does not appear in the printout of computer records held on Mr Hills’ file by Centrelink that was provided to the Tribunal in the T documents (see T11 folio 54) – those records appear in chronological order and evidence contact between Mr Hills and Centrelink on 3 December 2012 and 4 January 2013. No explanation has been given as to why the 24 December 2012 record did not appear in the records at T11. The record is of relevance to the proceedings and it should have been included in the T documents, or at least, provided to the Tribunal and to Mr Hills before the hearing.
Facts
In 2012, Mr Hills was enrolled for full-time study. A Centrelink record made on 20 February 2012 records his ‘Education Course Details’ as “Full-time student” undertaking a “CERT I & II IN AUTOMOTIVE SERVICING” course (“Institution Course Code: WA32AAUTY12”) at the Albany TAFE campus with an “Inst Course End Date” of 20 December 2012 and a “Student End Date’” of 20 December 2012;[1]
[1] T12 folio 73.
On 3 December 2012, Mr Hills contacted Centrelink by telephone. The Centrelink record of this conversation include –
“… End of Course details notified 3/12/2012
Customer has confirmed that they will be continuing to study in a new course in the next available semester.
The EDC and NES screens both updated to show the new study details.”[2]
[2] T11 folio 54
I have not been taken to and I have not found evidence of Mr Hills’ course details being altered on or about 3 December 2012. On that date, however, Centrelink sent Mr Hills a notice about his youth allowance. The notice set out the following information –
“Your Youth Allowance is based on you studying full time at the ALBANY TAFE CAMPUS/GREAT SOUTHERN INST OF TECH, Tertiary Group D Course with the course ending on the 30 November 2013. If your study load changes or if you cease study you should let us know within 14 days.”[3]
[3] T4 folio 30.
Mr Hills says he attended the Centrelink office in Albany on 19 December 2012. He informed Centrelink that he intended on moving from Albany to Perth to seek an apprenticeship in mechanical engineering. He told me that this was necessary in order to obtain a Certificate III and a trade qualification as a mechanic – it was not possible to undertake a Certificate III course at the Albany TAFE, and there was little prospect of him obtaining a mechanical engineering apprenticeship in Albany. On Mr Hills’ unchallenged evidence, he was provided with information about the job seeking requirements he should meet – “applying for 10 to 12 jobs each fortnight” – and he was given a Job Seeker form on which to record his job seeking activities.
Centrelink records reveal that Mr Hills’ address and his rental information were changed on 24 December 2012.[4]
[4] T12 folios 79 and 80, Secretary’s Post Hearing Submissions, Annexures A and B.
In a Centrelink record made on 21 December 2012, Mr Hills’ ‘Education Course Details’ were recorded as “Full-time student” undertaking a “CERT III IN METAL WORKS CERT I & II IN AUTOMOTIVE SERVICING” course (“Institution Course Code: WA32AAUTY12”) at the Albany TAFE campus with an “Inst Course End Date” of 30 November 2013 and a “Student End Date’” of 20 February 2013.[5]
[5] T12 folio 72.
Centrelink’s ‘Education Course History’ records include the following entries –
“DOE Lvl Lvl Start Date End Date …
21 DEC 2012 FTS TGD 20 FEB 2013 20 FEB 2013 …
21 DEC 2012 FTS TGD 20 FEB 2013 30 NOV 2013 …
20 FEB 2012 FTS TGD 8 FEB 2012 20 DEC 2012 …”[6]
[6] T12 folio 71.
How the 21 December 2012 records came into being, and the source of the information they contain, is not apparent on the present materials, and it has not adequately been explained. It is difficult to know what to make of them. The contents of the records are not consistent with Mr Hills’ unchallenged evidence in respect of his intentions at the time and the related information he says he provided Centrelink on or about 19 December 2012.
Mr Hills’ evidence is that he moved to Perth soon after 19 December 2012 and lived with his brother at Ascot. His intention was to obtain an apprenticeship in order to complete his training in mechanical engineering and to achieve a trade qualification. I accept Mr Hills’ evidence to this point.
On 24 December 2012, Centrelink sent Mr Hills a notice setting out details of his youth allowance and rent assistance payments. This notice informed him that “You are being paid the away from home rate of Youth Allowance from 24 December 2012”.[7] On 4 January 2013, Mr Hills attended the Centrelink office at Busselton and verified his rental details.[8]
[7] T5 folio 33.
[8] T11 folio 54.
Mr Hills’ evidence is that after moving to Perth, he applied for many jobs but he failed to obtain an apprenticeship. He says he recorded the details of his job-seeking activities over ensuing weeks and months on the Centrelink Job Seeker form he was given on or about 19 December 2012. He did not return the form to Centrelink at any time, as he did not know that this was required.
I find this evidence difficult to accept. While Mr Hills was young and inexperienced at the time, in my estimation, having heard his oral evidence, he is no fool – his assertion that he did not know that he should return the job seeker form to Centrelink stretches credulity too far. It is quite clear that a form of the kind Mr Hills described is for the purpose of providing information to Centrelink about job-seeking activities. Nonetheless, he told me that he retained the form and he would provide it to the Tribunal. When ordered to produce the form, Mr Hills advised on 28 January 2016 that he could not find it.
As the Centrelink Job Seeker form Mr Hills allegedly filled out is not in evidence, the only evidence of his job seeking activities from January to July 2013 is his own, and this lacks detail and it is without corroboration. I accept that Mr Hills obtained an offer of employment in July 2013, which he took up sometime in August after undergoing major dental work.
On 20 February 2013, Centrelink sent a notice to Mr Hills at his address at Ascot. The notice sets out information about his youth allowance and rent assistance payments, including the following information –
“Your Youth Allowance is based on you studying full time at ALBANY TAFE CAMPUS/GREAT SOUTHERN INST OF TECH, Tertiary Group D Course with the course ending on the 30th~’November~’2013. If any of this information is incorrect please phone us on 132490 or advise your nearest Centrelink Office immediately.”
Mr Hills’ evidence is that he did not receive this notice. He told me that he knows that he did not receive it because it contains information that is wrong and that would have caused him to ring Centrelink. He maintains that he has no recollection of being provided with such erroneous information by Centrelink, and he did not ring Centrelink about it. Mr Hills suggested that the letter may have gone astray or perhaps it may have been incorrectly addressed.
At this point, it is necessary to record that I have concerns about Mr Hills’ credibility and about the reliability of aspects of his evidence. While his difficulty in remembering specific details from two years ago may be understood (difficulties of this kind are not unusual or uncommon), Mr Hills changed his evidence on several occasions when faced with apparent inconsistencies in his account or arising from the documentary records. Tailoring his evidence in this way raises serious questions about his reliability as a witness. For this reason, little weight can be given to uncorroborated parts of his evidence.
On 23 May 2013, Centrelink sent a notice to Mr Hills about his youth allowance. The notice was sent to his Ascot address and it included the following information –
“We were recently advised that there has been a change in your family circumstances. To help us make the right decision about your Youth Allowance we need your parent/s or guardian’s to provide us with their taxable income by 6~’June~’2013.”[9]
[9] T6 folio 36.
Mr Hills’ evidence is that he does not recall receiving this notice.
On 29 July 2013, Centrelink sent Mr Hills a notice informing him that “Your Youth Allowance has been suspended because we have not received a reply to a letter we sent you”. The notice was sent to his address at Ascot. Mr Hills told me that he recalls receiving the notice of suspension after he noticed that there was no money in his bank account.
His evidence is that he commenced work in a bottle shop in or about July or August 2013, he could not be sure of the date he started, but it was after he had major dental work done and he was not receiving youth allowance or any other Centrelink payment at the time.
On 9 February 2014, a Centrelink officer decided that Mr Hills had been overpaid $5,561.66 in youth allowance payments from 20 February 2013 to 28 July 2013, and that this amount should be recovered from him as a debt.[10]
[10] T11 folio 53; ST2 folios 5-6 refer.
At Mr Hills’ request, the matter was referred to be reviewed by an Authorised Review Officer (ARO).[11]
[11] T8 folio 41.
On 13 March 2013, the ARO decided to affirm the overpayment and debt recovery decision.[12]
[12] T9.
On 30 June 2015, the decision was affirmed by the SSAT.[13]
[13] T2.
Issues
The issues to be decided are –
(a)was Mr Hills overpaid amounts of youth allowance;
(b)if so, what is the amount of the overpayment debt he owes to the Commonwealth; and
(c)should recovery of any part of the debt be written off or waived?
Overpayment
The Secretary asserts that Mr Hills failed to meet the ‘activity test’ requirements for youth allowance from 19 December 2012, when he ceased full-time study. It is for this reason, in the Secretary’s submission, that Mr Hills was not entitled to receive amounts of youth allowance paid to him from 20 February 2013 to 28 July 2013, on which date his youth allowance was suspended.
Mr Hills accepts that he was overpaid, but he maintains this was not his fault.
In order to be eligible for payment of youth allowance, Mr Hills would need to satisfy the ‘activity test’ set out in s 541 of the Social Security Act 1991 (the Social Security Act) during the relevant period –
541 Activity test
General
(1) Subject to section 541A and subsection (3) of this section, a person satisfies the activity test in respect of a period if:
(a) the person satisfies the Secretary that, throughout the period, the person is undertaking full-time study (see section 541B); or
(b) subject to subsection (4), the person (not being an early school leaver) satisfies the Secretary that, throughout the period, the person is actively seeking, and willing to undertake, paid work in Australia (other than paid work that is unsuitable for the person).
…
People who cease undertaking full-time study
(4) For the purposes of paragraph (1)(b), a person who has:
(a) ceased undertaking full-time study; and
(b) been given a notice under section 68 of the Administration Act that has the effect of requiring the person to inform the Department of that cessation; and
(c) refused or failed to comply with the notice in respect of that cessation;
cannot satisfy the Secretary that, at a particular time after the refusal or failure, the person is actively seeking, and willing to undertake, paid work in Australia unless, before that time, the person has informed the Department of that cessation or the Department has become aware of that cessation.
The notice referred to in s 541(4)(b) is a notice issued under s 68 of the Social Security (Administration) Act 1999 (the Administration Act). I am satisfied that Centrelink issued Mr Hills with notices setting out his obligation to inform Centrelink of any change to his course of study or if the information set out in the notice is incorrect on 3 December 2012 and 20 February 2013.
It appears that Mr Hills complied with the 3 December 2012 notice. But he did not comply with his obligations under the 20 February 2013 notice. Even though Mr Hills says he did not receive this notice, the notice was sent by post to Mr Hills’ correct address at that time. Under s 28A(1)(ii) of the Acts Interpretation Act 1901 (the Interpretation Act), where a statute provides for a document to be given to a person, it is taken to have been given if it is sent by post to “the address of the place of residence or business of the person last known to the person serving the document”. Thus, for the purposes of s 68(2) of the Administration Act, as the 20 February 2013 notice was sent to the Ascot address Mr Hills provided Centrelink, being his last known place of residence, the notice is taken to have been given to him.
As Mr Hills failed to comply with the notice and he was not then undertaking a full-time course of study, he cannot satisfy the activity test set out in s 541(1) of the Social Security Act.
Mr Hills’ uncorroborated evidence about his job seeking activities from January 2013 to July 2013 is not sufficient to meet the requirements of s 541(1)(b).
He does not satisfy the activity test set out in s 541(2) - the Secretary had not formed the opinion that he should undertake particular paid work and did not issue Mr Hills a notice to that effect.
For these reasons, he was not qualified to receive the youth allowance payments made to him from 20 February 2013 to 28 July 2013.
The total amount of these overpayments is $5,661.61.
Debt
Under s 1223 of the Social Security Act, the amount Mr Hills was overpaid is a debt due to the Commonwealth for which he is liable.
Recovery
Mr Hills argues that the debt should not be recovered as he did nothing wrong and the overpayments occurred because Centrelink made an error. He should not be held liable for Centrelink’s mistake.
The Social Security Act provides for debts to be written off and for recovery of debts to be waived in certain circumstances.
Write off
Under s 1236 the Secretary may write off a debt for a period –
(1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
(c) the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d) it is not cost effective for the Commonwealth to take action to recover the debt.
None of these criteria are made out. Mr Hills told me that he is presently in paid employment and he has a number of financial commitments, including in relation to a house he has purchased with a mortgage, and in respect of loans from his mother. Considering his evidence about his financial circumstances, I am satisfied that he has some capacity to repay the debt.
The debt cannot be written off under s 1236.
Waiver – administrative error
Section 1237A provides for waiver of a debt that results solely from Commonwealth error –
(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.
There are three key considerations – whether the debt is ‘attributable solely’ to an ‘administrative error made by the Commonwealth’; and whether the debtor received the overpayments ‘in good faith’.
The way in which Mr Hills’ study records were changed on 21 December 2012 has not been explained. The changes were not correct. On the present evidence, it appears that this may have been an administrative error by Centrelink.
The term ‘attributable solely’ can readily be understood – it means that the overpayment must have occurred because of an administrative error by the Commonwealth and for no other reason. Failing to inform Centrelink that crucial information set out in a formal notice given to a claimant is incorrect may be taken to contribute to an overpayment and, therefore, to a debt if the incorrect information is necessary to calculate the person’s correct entitlement to a payment.
This is a difficulty for Mr Hills. He failed to inform Centrelink that the information set out in the 20 February 2013 notice about him undertaking full-time study was incorrect. Had he done so, Centrelink would have been able to calculate his correct entitlement to youth allowance. As that did not happen, he was paid amounts to which he was not entitled. His failure to inform Centrelink was a contributory cause of the overpayment debt that resulted.
For this reason, the debt arising from 20 February 2013 cannot be waived under s 1237A.
Waiver – special circumstances
The final consideration is whether special circumstances exist that make it appropriate to waive recovery of any part of Mr Hills’ overpayment debt under s 1237AAD –
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, the Administration Act or the 1947 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.
I have considered the evidence about his circumstances. When the overpayment occurred, he was young; but his youth does not make his case special. He was striking out to find opportunities to advance his education and his employment prospects in Perth, many kilometres away from his mother in Albany. But this does not render his case special – he was sharing a house with his brother in Perth, and he was not without familial support.
His finances, presently, are finely balanced. He has assets in the form of two cars and a house, but he owes debts to his mother and to a dentist, as well as the mortgage on his house which is not yet tenanted. He is employed, and he is struggling to make ends meet, but he is coping and his finances may improve when a tenant is found for the house he recently purchased. His financial circumstances are not special. In many ways he is better off than many who owe debts to the Commonwealth.
Mr Hills acknowledged that there was nothing very special about his case, other than the way in which he has been treated by Centrelink in respect of the debt raised against him. He said that he had tried to do the right thing, but he was given incorrect or incomplete or inaccurate information, and he should not be held liable for the resulting debt. In his submission, Centrelink should be held responsible for its error, not him – Centrelink should be made to do better, and it should improve its systems for providing clients with information in plain language, and in a comprehensible form without pages of detail.
There is some force to some of these arguments. The circumstances in which Mr Hills’ debt initially arose, because of changes made to his study records retained by Centrelink, are somewhat mysterious and unexplained.
But no debt has been raised against him for payments made before 20 February 2013. This is despite the probability that he was not qualified for at least some of the youth allowance payments made to him prior to that date. The debt he owes is raised from 20 February 2013.
On the one hand, I think that a person such as Mr Hills should be entitled to rely on the information and advice he is given by Centrelink officers. But on the other hand, he, like all recipients of social security payments, is obliged to be vigilant and to exercise diligence in his dealings with Centrelink, reading notices he is sent and ensuring that information used to calculate his entitlements is correct.
On balance, I do not think that the circumstances of Mr Hills’ case are within the scope of ‘special circumstances’ that make it appropriate to waive any part of his debt.
Decision
The decision under review is affirmed.
I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member. ...(Sgd) T Freeman.....................
Administrative Assistant
Dated 5 February 2016
Date of hearing 16 December 2015 Date final submissions received 28 January 2016 Representative for the
ApplicantMrs S Randall Representative for the
RespondentMs B Rayment
Solicitors for the Respondent
Mills Oakley Lawyers
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