Jack; Department of Education, Training and Youth Affairs

[2001] AATA 709

DECISION AND REASONS FOR DECISION [2001] AATA 709

ADMINISTRATIVE APPEALS TRIBUNAL              Nº V2000/1112

GENERAL ADMINISTRATIVE   DIVISION                   
  Re:       SECRETARY TO THE

DEPARTMENT OF EDUCATION,
  TRAINING AND YOUTH AFFAIRS

Applicant
  And:     DOUGLAS OWEN JACK
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:9 August 2001

Place:Melbourne

Decision:The Tribunal sets aside the decision of the Social Security Appeals Tribunal dated 7 August 2000 and substitutes a decision that the respondent owes a debt to the Commonwealth of $3434.91, being AUSTUDY for the period 1 January 1998 to 3 July 1998 which was paid to the respondent and to which he was not entitled.

(sgd) Graham Friedman
  Member
STUDENT ASSISTANCE - AUSTUDY - debt to Commonwealth - whether full-time workload - advice given by Centrelink officer - whether debt attributable solely to administrative error
Student Assistance Act 1973 s43B
AUSTUDY Regulations reg 12E, reg 35

REASONS FOR DECISION

9 August 2001  G.D. Friedman, Member

1. This is an application by the Secretary to the Department of Education, Training and Youth Affairs (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) made on 7 August 2000 which set aside a decision of a Centrelink delegate of the Secretary of the Department of Family and Community Services dated 22 January 1999.  The original decision by Centrelink found that Douglas Owen Jack (the respondent) had a debt to the Commonwealth in the amount of $3434.91 being AUSTUDY paid to the respondent for the period 1 January 1998 to 3 July 1998.   The SSAT found that the debt existed for the period but that recovery of the debt is to be waived due to administrative error by Centrelink.   The SSAT remitted the matter to Centrelink for reconsideration.

2. At the hearing of this matter on 7 August 2001 the applicant was represented by Mr C. Fairfield of Counsel. The respondent represented himself and gave evidence by telephone from the United Kingdom, assisted by his parents who were present at the hearing. The evidence before the Tribunal comprised the documents lodged under s37 of the Administrative Appeals Tribunal Act1975 together with oral evidence.
   BACKGROUND

3. The respondent was born on 11 June 1969 and is a qualified chef by occupation.   In 1996 he enrolled in the Advanced Certificate in Clothing Manufacture at Box Hill Institute of TAFE (Box Hill).   In 1997 he enrolled in the Certificate III in Clothing Production, the Certificate IV in Clothing Industry Studies (Garment Manufacturing/Patternmaking) and the Diploma of Clothing Industry Studies (Advanced Patternmaking/Prototypes) as a full-time student and received AUSTUDY payments.   In late 1997 he decided to change to part-time study, and he consulted AUSTUDY, Centrelink and Box Hill about his plans.   On 23 December 1997 he attended the Centrelink office in Glen Waverley (Glen Waverley), where he completed an application for continuing AUSTUDY payments and stated on the form that he was proposing to undertake full-time study in 1998.   On the basis of this application Centrelink continued AUSTUDY payments in 1998 even though the respondent undertook part-time study.

4. In 1998 the respondent enrolled in the Diploma of Clothing Industry Studies (Specialised Garment Design and Production) and the Diploma of Clothing Industry Studies (Advanced Patternmaking/Prototypes).   At the end of 1998 the respondent completed his diploma.   In 1999 Centrelink informed him that as he had not been a full-time student during the period 1 January 1998 to 3 July 1998 he was not entitled to receive AUSTUDY, and sought repayment of the debt.   On 15 August 1999 the respondent wrote to Centrelink seeking review of the decision.   On 26 October 1999 the review officer affirmed the decision.   On 6 July 2000 the respondent applied to the SSAT for review of the decision and on 7 August 2000 the SSAT set aside the decision.   On 18 September 2000 the applicant applied to the Tribunal for review of the decision by the SSAT.
   EVIDENCE

5. The respondent told the Tribunal that when he attended Centrelink in late 1997 he knew that as a part-time student he was not entitled to continue to receive AUSTUDY.   He said that he was given a number of options including studying additional subjects in 1998 that would constitute a full-time workload.   He said that on 23 December 1997 he returned to Glen Waverley with a list of subjects that were required to be studied by him to complete his diploma.   He stated that he had been informed by Box Hill that the requirement was 772 hours with some exemptions and credits for recognised prior learning, and that he may be able to complete his course by the end of 1998.

6. According to the respondent Centrelink advised him that on the basis that a total of 790 hours (including a number of exemptions) were due to be undertaken in a twelve-month period he would be considered as a full-time student.   He said that following this advice he completed the application as a full-time student.  The respondent said that in first semester 1998 he enrolled in 111 hours of study and a further 240 hours of work placement, and completed all his required subjects at the end of 1998.   With regard to his application for exemptions, he stated that due to administrative difficulties at Box Hill the matter was not finalised until 1999, when he was granted exemption in each subject for which he had made an application.

7. The respondent said that Centrelink informed him in January 1999 that exemptions were not counted as hours of study and only actual contact hours could be included, and that consequently he had received payment to which he was not entitled.  He said that this information conflicted with the information received previously from Centrelink that if fees were paid for exemption hours then these would be included in the workload assessment.   He stated that he was shocked, as at all times he had acted honestly and in good faith.

8. Under cross-examination the respondent agreed that on 15 December 1997 he enrolled in 3 subjects and paid the fees, and on 29 January 1999 he enrolled in 4 subjects and paid the late fees for subjects studied in 1998.   He agreed that at no time in 1998 was he enrolled as a full-time student.   He said that he sought exemption from 11 subjects and was advised by Box Hill to submit a combined application, which he did in 1998. He said that he paid one fee in 1999 for the exemption application.   He acknowledged that he was required to inform Centrelink of any changes in his circumstances, but did not think to inform Centrelink that he was undertaking only a part-time workload in 1998, as he was struggling with the workload and was trying to finalise the question of exemptions.

9. Written advice dated 8 February 2001 from Box Hill confirmed that in 1998 the respondent was enrolled in 343 hours as a part-time student and that he applied for 11 exemptions, which were granted in 1999. Box Hill advised that if a student is likely to be granted an exemption he or she does not enrol in the subject prior to seeking the exemption.   If a student is unsure the student is advised to enrol, then attend classes until such time as the exemption is granted or not granted.   Box Hill advised that the respondent did not enrol in any subjects for which he sought exemption.   On 10 May 2001 the Registrar of Box Hill advised that in 1998 to the best of her knowledge the respondent did not pay fees towards subjects for which he was granted exemption.
   CONSIDERATION OF THE ISSUES

10. In order to qualify for benefits under AUSTUDY applicants must be full-time tertiary students who are enrolled in and undertake at least three-quarters of a normal full-time workload. Regulation 35 of the AUSTUDY Regulations provides that the normal amount of full-time work for a year of the course is the amount specified by an institution that a full-time student should normally undertake. Regulation 12E has the effect that the difference between the amount paid to the respondent and the amount to which he was entitled is considered to be a student assistance overpayment. The Student Assistance Act 1973 provides in relation to the waiver of a debt arising from an error:

    43B(1)     Subject to subsection (2), 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).

11. Mr Fairfield, on behalf of the applicant, said that on the respondent's own evidence he knew at the time of his visit to Glen Waverley on 23 December 1997 and when he commenced the 1998 academic year that he was a part-time student.   Mr Fairfield submitted that the respondent gave incorrect or incomplete information to the Centrelink officer at Glen Waverley by telling the officer that he had 772 hours of study to complete the course in 1998, when he intended to enrol only in a part-time workload.   A full-time workload would involve enrolling for all the subjects for which exemption was later claimed, although at no time did the respondent enrol in these subjects or pay any fees before his application for exemption was accepted in 1999.   Mr Fairfield submitted that the respondent gave the Centrelink officer the impression that the equivalent of a full-time workload was to be undertaken, even though 8 days earlier the respondent had enrolled in only 3 subjects.

12. The applicant submitted further that because of the actions of the respondent there was no evidence that the debt was attributable solely to an administrative error by the Commonwealth.  Mr Fairfield said that even if this were not the case, no waiver of the debt is appropriate because the respondent did not receive the payment in good faith as he had not informed Centrelink in 1998 that his circumstances had changed in that he was not enrolled in, nor was undertaking, the subjects for which he proposed to claim exemption, and consequently he was not a full-time student.

13. There is no documentary or other evidence from the applicant about the conversation between the respondent and the Centrelink officer at Glen Waverley on 23 December 1997.  However, even if the evidence of the respondent is to be accepted, there is a strong possibility that the advice given to the respondent was correct, because the officer may have assumed from the conversation that in 1998 the respondent would enrol in the 772 hours that had been calculated by Box Hill (790 hours over a twelve-month period), including those subjects nominated by the respondent as possible exemptions.   This would constitute a full-time workload.

14. Although there may have been some administrative delays at Box Hill in 1998 the Tribunal does not accept the evidence of the respondent that in 1998 he attempted to finalise the subjects for which he claimed exemption.   Contrary to the usual practice at Box Hill he did not enrol in any of the subjects and his evidence that he paid for some of those subjects was vague and not supported by documentary evidence.  The Tribunal prefers the statement from Box Hill that in 1998 the respondent enrolled in 7 subjects and that he did not enrol in, or pay fees for, any of the subjects for which he sought exemption.  Consequently at the time he sought advice from Centrelink on 23 December 1997 none of these subjects should have been included in the workload to be assessed.  Until he received an indication that the exemptions were to be granted, the respondent was undertaking a part-time workload.

15. For these reasons the Tribunal finds that the respondent was not entitled to AUSTUDY for the relevant period. As the debt is not attributable solely to an administrative error by the Commonwealth it cannot be waived under s43B.
    DECISION

16. The Tribunal sets aside the decision of the Social Security Appeals Tribunal dated 7 August 2000 and substitutes a decision that the respondent owes a debt to the Commonwealth of $3434.91, being AUSTUDY for the period 1 January 1998 to 3 July 1998 which was paid to the respondent and to which he was not entitled.

    I certify that the fifteen [16] preceding paragraphs are a true copy of the reasons for the decision herein of
    G.D.Friedman, Member

    (sgd)       Catherine Thomas
                  Clerk

    Date of hearing:  7 August 2001
    Date of decision:  9 August 2001
    Counsel for applicant:                 Mr C. Fairfield
    Solicitor for applicant :                Australian Government Solicitor
    Solicitor for respondent:              Nil — Self-represented