Hudson and Secretary, Department of Education, Science and Training

[2006] AATA 226

Administrative

Appeals

Tribunal

 

WRITTEN REASONS FOR ORAL DECISION [2006] AATA 226

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/1079

GENERAL ADMINISTRATIVE  DIVISION		)
Re		CHRISTOPHER HUDSON

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, SCIENCE AND TRAINING

Respondent

DECISION

Tribunal   Senior Member, Mrs Josephine Kelly

Date  16 February 2006

Date of Written Reasons            10 March 2006

Place  Sydney

Decision The decision under review is affirmed.

[sgd] Senior Member, Mrs Josephine Kelly

CATCHWORDS

SOCIAL SECURITY – Austudy payment – Applicant no longer at university full-time – debt raised – Applicant failed to notify Centrelink of changes to study load - Applicant argued special circumstances due to illness and entitlement to another social security payment – no special circumstances found – decision affirmed

LEGISLATION

Social Security Act 1991 ss 568, 568A, 569, 569A, 569C, 569D, 1223, 1236, 1237A and 1237AAD

WRITTEN REASONS

1. At the conclusion of the hearing of this matter, the terms of the decision made and the reasons for that decision were stated orally. The Applicant requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons. The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and furnished to the Applicant and to the Respondent.

WRITTEN REASONS FOR ORAL DECISION

Senior Member, Mrs Josephine Kelly  

Issues

1.      The issue before the Tribunal is whether Mr Hudson has an Austudy debt of $5204.67 for the periods of 20 May 2004 to 5 July 2004 and from 9 July 2004 to 11 November 2004. The second issue is whether, if there is a debt, should it be waived.

Facts

2.      At the end of the hearing the underlying facts in this matter were not in dispute. In January 2004 Mr Hudson enrolled in the Graduate Diploma in Social Sciences at the University of New England to undertake three subjects in each of the first and second semesters. On 3 February 2004 he lodged a claim for Austudy which was granted because he was considered to be a full time student. He was aware that he was obliged to notify Centrelink if he varied his enrolment, including withdrawing from a subject while he was receiving Austudy. On 10 March 2004 Mr Hudson was sent a letter (T20) that stated:

The changes that you must tell Centrelink about are… vary your enrolment at school, college or university or other technical institution.

3.      In document T1 Mr Hudson explains why the debt should not be raised. At the time the letter was sent on 10 March 2004 he was concentrating on his studies. He did not read this letter in detail as:

Computer-generated letters are very often not taken notice of, for the fact that they are seen as bureaucratic general information.

4.      During the course of the hearing before me Mr Hudson repeated several times that this process was bureaucratic and what he wanted was an independent decision.

5.      During the first semester on 20 May 2004 Mr Hudson withdrew from one subject, PSYC200 Social Psychology. At the beginning of the second semester on 9 July 2004, he withdrew from the subject he was to undertake during that semester (T22). I note that the evidence refers to that subject as PSYC103 Introductory Psychology 3, however, Mr Hudson said he was never enrolled for that subject but that he withdrew from another subject for which he was enrolled at that time. It is unnecessary to resolve that argument. Mr Hudson has agreed that he has withdrawn from a subject at the beginning of the second semester.

6.      In November 2004 Centrelink performed a data-matching exercise with the University of New England and found that Mr Hudson had withdrawn from the two subjects. The reason that the debt was raised was that those withdrawals caused Centrelink to determine that Mr Hudson had an insufficient study load.

The Applicant’s Arguments

7.      The following is essentially the arguments put to the Tribunal by Mr Hudson as to whether the debt should not have been raised and, secondly, whether it should be set aside. 

8.      His first argument is that he would have been entitled to Newstart Allowance during the period he received Austudy, for which the debt was raised. He said he would have received a higher payment for Newstart because it includes rent assistance which Austudy does not. Therefore, it is unfair because logically and in fact he would argue there is no debt.

9.      The second argument was that he was not seeking to defraud the Commonwealth, that is it was an inadvertent failure to advise of his changes in course load. In May 2004 when he withdrew from the first subject he was very depressed and distressed. The subject was one which had prerequisites which should have been completed before the subject was undertaken. He was unaware of those prerequisite subjects and had not done them.

10.     He was disadvantaged and found it very difficult to cope. His distress was exacerbated by his tutor's criticisms. The tutor referred to the prerequisite subjects saying things like, well, if you've done this particular prerequisite you would know this. Mr Hudson had never withdrawn from anything like that before and was more than merely upset;, devastation was how he described his feeling at the time.

11.     Mr Hudson does not believe that he has to be clinically depressed to have been suffering a depressive state at the time. It was due to this temporary depressive state that "impaired my understanding of priorities and my need to inform Centrelink of changes".

12.     His opinion is that he should be entitled to special circumstances because he should not have to have a life-threatening illness to be eligible for the special circumstances exemption or discretion to be exercised.

13.     The third argument is that Mr Hudson in his written material referred to having had oesophagitis, in 2003 and well into 2004. He claimed the condition affected his sleep patterns, that he had constant night sweats and a pain in his chest; he found any movement in bed extremely painful.

14.     The fourth argument was based on reports tendered at the hearing from his GP, Dr Mayo. The first refers to abnormal blood tests from October 2003 that were under continuing investigation. The second report dated 14 February 2006 provides a diagnosis and that Mr Hudson has been referred to a specialist for further investigation and treatment. Mr Hudson thought this condition caused him fatigue, to make mistakes and to forget things.

15.     Mr Hudson's fifth argument is that he suffers financial hardship. He describes his living style as below what could be considered as average by social standards. 

16.     I note he has been receiving Newstart Allowance since his Austudy was cancelled and from February 2005 amounts have been deducted from that allowance. Initially, the payments were $80 or $90 a fortnight. After he complained they have been reduced to $30 a fortnight and, accordingly, his debt has been reduced to an extent.

17.     I also understand him to argue as a sixth argument that he satisfied the mutual obligations necessary to receive Newstart during the period of the debt.  However, on the other hand, he said, which is quite understandable, that he was not looking for work in 2004 because he was studying and thought he was entitled to Austudy which had no such requirement.

18.     He referred to various voluntary activities that he undertakes which have been accepted by Centrelink as part of his mutual obligation since he has returned to receiving Newstart Allowance. He also referred to activities as a second-hand bookseller which may be summarised as attending a market once a month and trying to establish an internet site for selling second-hand books. He notifies Centrelink if anything comes from this activity which is very small.

Law

19.     The law relating to Austudy is summarised as follows:

20. Austudy is a payment that is provided for students over the age of 25. To qualify for it you must be enrolled or intending to enrol in an approved course of study and be a full time or a concessional workload student. Section 568 establishes the general rule regarding the qualification for Austudy payment.

21. The relevant criterion in this case is in section 568(a),:

the person satisfies the activity test.(see Subdivision B); …

22. .Section 569(1) establishes that a person satisfies the activity test if the person is undertaking qualifying studies which is addressed in section 569A.

23. The relevant criterion for present purposes is section 569A(c):

The person is a full time student or a concessional study load student in respect of that course - see sections 569C and 569D.

24. Section 569C provides a definition of a full time student:

For the purposes of this subdivision a person is a full time student in respect of a course if:

(a) in the case of a person who is enrolled in a course for a particular study period (such as, for example, a semester)- the person is undertaking at least three-quarters of the normal amount of full time study in respect of the course for that period; or

(b) in the case of a person who intends to enrol in the course for a particular study period- the person intends to undertake at least three-quarters of the normal amount of full time study in respect of the course for that period.

25. Section 569D(1) establishes that there are two classes of concessional study load students who are still eligible for Austudy.

26.     It is unnecessary for this decision to detail those provisions. I note those provisions, however, there was no material in this case that could satisfy their requirements and they were not relied upon.

The law relating to debts

27. Section 1223(1) of the Act provides that a person who is not entitled to a Social Security payment but has obtained the payment owes a debt to the Commonwealth.

28.     Section 1236 establishes that the Secretary may have to write off a debt in some circumstances. Relevantly, they are section 1236(1A) the Secretary may decide to write off a debt under subsection (1) if and only if relevantly the debt is irrecoverable at law, which it is not in this case, or (b) that the debtor has no capacity to repay the debt.

29.     I note that section 1236(1)(c) is irrelevant.

30.     In this case I note, as I have stated above, that Mr Hudson has been repaying the debt over a period of time. He does describe his circumstances as I have described them earlier, however, in my opinion it does not amount to his being in severe financial hardship.

31. I note that section 1237A does not apply because the debt is not attributable solely to administrative error. Section 1237AAD provides that part or all of the debt can we waived if, among other things, there are special circumstances other than financial hardship which make it desirable to waive the debt.

Consideration

32.     The difficulty in Mr Hudson's case is that that provision does not apply where there's been knowingly, a failure or omission to comply with a provision of this Act or the 1947 Act.  Accordingly, I find that Mr Hudson cannot rely on this provision because he did know what his obligation was and he failed to comply with the legislation.

33.     While one can understand and sympathise with his position in May 2004 and take into account that his health may have contributed to his depressed condition and that those reasons continued through 2004, the legislation requires that a person who receives a benefit must advise Centrelink of relevant changes in circumstances. He did not. As section 1237AAD is not satisfied he cannot succeed pursuant to this provision.

34.     I have not found any relevant legislative provisions which would allow me to offset a retrospective entitlement to Newstart during the debt period as Mr Hudson contended.  He did not claim Newstart and he was not receiving it.  He did not satisfy the activity test for that benefit during the relevant period, quite logically because he was concentrating on his studies and he was receiving Austudy for which there was no similar requirement.

35.     This outcome for Mr Hudson may be seen by some as an anomaly in the legislation.  However, such a matter is for the Parliament and not for this Tribunal.

Decision

36.     For the above reasons the reviewable decision is affirmed.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of
Senior Member, Mrs Josephine Kelly

Signed: Miss Sacha Keady
  Associate

Date/s of Hearing  15 February 2006
Date of Decision  16 February 2006
Date of Written Reasons          10 March 2006
Advocate for the Applicant       Self Represented
Advocate for the Respondent   Centrelink Legal Services