Jenkins and Secretary, Department of Education, Science and Training

[2007] AATA 1772

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1772

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 200700044

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Haydn Philip Jenkins

Applicant

And Secretary, Department of Education, Science and Training

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date18 September 2007

PlaceBrisbane (heard in Townsville)

Decision The decision under review is affirmed.

....................[Sgd].....................

SENIOR MEMBER

CATCHWORDS

SOCIAL SECURITY – Pensions, Benefits and Allowances – income not reported – overpayment of youth allowance – debt raised – no special circumstances – decision affirmed

Social Security Act 1999

Social Security (Administration) Act 1999

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

REASONS FOR DECISION

18 September 2007 Senior Member B J McCabe         

1.      The respondent says Mr Haydn Jenkins was overpaid Youth Allowance in the period 13 January 2003 – 8 February 2006. Mr Jenkins failed to keep Centrelink fully apprised of his earnings from paid part-time work while he was studying. Mr Jenkins told the Tribunal he doubts he was paid at the correct rate. He says he thought he was being paid at the higher independent rate, and – if he was not – he should have been. If he is right, he is hopeful the amount of any debt he owes would be smaller. He also says the debt should be waived.

2.      For reasons I will explain, I am satisfied a debt is due and that the amount of the debt has been calculated correctly. I am also satisfied the debt should not be waived.

a jurisdictional issue

3.      Mr Keim, for the respondent, said he did not think the Tribunal had jurisdiction to consider the applicant’s claim that he should have been paid at a higher rate. Mr Keim said the decision in relation to the rate of payment was actually a series of decisions made on a regular basis throughout the period Mr Jenkins was receiving assistance. It was separate from the decision to raise and recover the debt. Mr Keim says Mr Jenkins has never sought review of the decisions as to the correct rate of payment and the Tribunal does not have jurisdiction to deal with them until he has followed the ordinary process of review.

4.      Even if the Tribunal was prepared to entertain the application to review the rates of payment, Mr Keim said it was unable to do anything effective because the relevant provisions of the Social Security (Administration) Act1999 place limits on the amount of arrears that can be paid following a decision to change a rate of payment.

5.      I invited the parties to make further submissions with respect to these matters. Mr Keim’s submissions repeated what he had said at the hearing. Mr Jenkins did not take advantage of the opportunity provided to make submissions.

6.      I note in any event the original application form makes it clear Mr Jenkins applied for Youth Allowance paid at the ‘living at home rate’ rather than the independent rate. Centrelink has never been asked to consider him as an independent person. It would therefore be inappropriate to deal with those questions on review.

is there a debt?

7. Section 1223 of the Social Security Act1991 (the Act) says the Commonwealth may recover an amount that is overpaid (ie, an amount paid to the applicant that he was not entitled to receive) as a debt. The respondent says the amount of the overpayment is $7404.22.

8.      Youth Allowance is an income-related payment. A recipient’s entitlement depends in part on his level of income. Centrelink asked about that income when the applicant initiated his application. He provided some pay-slips and completed the relevant form with the assistance of a Centrelink officer at James Cook University where he was a student. An estimate was provided as to his income. There is no dispute that the estimate was accurate when it was provided. Over time, however, Mr Jenkins began to work more. While his income fluctuated so that he occasionally earned less than the original estimate, he usually earned more.

9.      Mr Jenkins agreed he received correspondence from Centrelink on a number of occasions. He did not read it. If he had, he would have seen the instruction that he should inform Centrelink if his circumstances changed. In particular, the form letters (reproduced in documents T7 – T19) sent out on a number of occasions instructed him to contact Centrelink and advise “If you start or stop receiving income or income changes.” He did not comply with that requirement, and Centrelink assumed that his income remained the same until it learned otherwise.

10.     The conclusion is inescapable: Mr Jenkins earned more than he anticipated and failed to tell Centrelink. As a result he was paid more than he was entitled to receive.

should the debt be recovered?

11.     The respondent may waive recovery of a debt in defined circumstances: s 1237. Section 1237A allows the debt to be waived where the debt only arose because of an administrative error on the respondent’s part. Given Mr Jenkins failed to comply with his obligation to report because he did not read his mail, it is difficult to make that argument. But Mr Jenkins tried: he suggested he should have received clearer advice about his obligation to report. He also felt Centrelink was remiss in not checking up on students because he imagined many of them made the same error he did.

12.     Mr Jenkins is wrong. Applicants for Youth Allowance assume certain obligations. One of those obligations set out in the correspondence from Centrelink is an obligation to report changes in circumstances. It is up to the individual to take the initiative in providing that information because he or she is in the best position to know about those matters. It is wrong to try and shift that burden to Centrelink.

13.     I am satisfied there was no administrative error on Centrelink’s part. The obligation to report was set out clearly enough. It is Mr Jenkins’s fault that he failed to read what Centrelink wrote in its letters.

14.     The only other basis for waiver that could be available is s 1237AAD. That provision permits waiver in special circumstances. That expression has been considered in cases like Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545. It means circumstances that make the applicant’s case unusual when compared with other cases.

15.     Mr Jenkins referred to a number of matters he suggested might amount to special circumstances. In his application for review, he referred to difficulties he experienced during his final years of study, including:

·     his relationship with his girlfriend broke down;

·     a poor relationship with this father, and ongoing issues arising out of his parents’ divorce some years before;

·     difficulties finding a job;

·     news that he was prone to skin cancer. He has had several growths removed and must be vigilant;

·     stress at university.

16.     He has a better relationship with his father and appears to have moved on following the end of his relationship with his former girlfriend. He has also obtained a job and appears to be in a more positive frame of mind. He has some debts but is not in financial difficulty.

17.     There is nothing special or unusual about the applicant’s current circumstances. It is difficult to point to anything in the evidence about his final years of study that is particularly unusual. I am not inclined to exercise the discretion available under s 1237AAD.

conclusion

18.     The decision under review is affirmed.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed:         .....................................................................................
  Associate:     Stephen O’Grady

Date of Hearing  12 July 2007
Date for Written Submissions   10 August 2007 
Date of Decision  18 September 2007
For the applicant  Self-represented
For the applicant  Mr C Keim, a departmental advocate