Kamenjas and Secretary, Department of Family and Community Services

[2005] AATA 273

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 273

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/511

GENERAL ADMINISTRATIVE DIVISION		)
Re		FAHRUDIN KAMENJAS

Applicant

And SECRETARY DEPARTMENT OF FAMILY & COMMUNITY SERVICES  

Respondent

DECISION

Tribunal Mr Ian Way, Member

Date31 March 2005

PlaceSydney

Decision The decision under review is set aside and in substitution therefor the Tribunal determines that Fahrudin Kamenjas does not have a youth allowance debt of $1,728.01 due to the Commonwealth.

[Sgd]   Mr Ian Way   

Member

CATCHWORDS

SOCIAL SECURITY - youth allowance debt – whether the Applicant received youth allowance during specified period which he was not entitled – whether a recoverable debt exists and if so, whether the debt should be recovered – analysis of evidence – consideration – decision under review set aside.

Social Security Act 1991- sections 540, 541, 1223, 1236, 1237

REASONS FOR DECISION

31 March 2005 Mr Ian Way, Member          

1.      This is application by Fuhrudin Kamenjas for review of a decision of a Social Security Appeals Tribunal, dated 24 March 2004, which affirmed the decision of Centrelink made on 26 November 2002 to raise and recover from Mr Kamenjas a youth allowance debt of $1,728.01, covering the period 3 May 2002 to 14 July 2002.

2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T41) and the Secretary’s Statement of Facts and Contentions, dated 21 September 2004 (Exhibit R1).

3.      The Applicant was self represented and was assisted in the hearing of this matter by his uncle Mr H. Kamenjas.   Both the Applicant and his uncle gave oral evidence. The Respondent was represented by Ms A. Garcia.

background facts

4.      There is no dispute between the parties about the chronology and background facts in this matter and in a view of this and on the material before it, the Tribunal finds as follows:

6/02/2002The Applicant enrolled in a Statement of Attainment in Manufacturing and Engineering, at Miller TAFE, for a full year. The enrolment form indicates the Applicant enrolled in 15 subjects.

1/03/2002The Applicant lodged a claim for Youth Allowance. At this time, the Applicant was residing with his parents.

17/03/2002The Applicant’s claim for Youth Allowance was rejected on the basis he had failed to provide Centrelink with information.

25/03/2002The Applicant contacted Centrelink to register a new intention to claim Youth Allowance.

4/04/2002A Centrelink Social Worker interviewed the Applicant to establish whether he could be paid Youth Allowance as an independent person because it is “unreasonable to live at home (UTLAH)” with his parents. The Applicants claim was considered on the basis of him being a full-time student.

3/05/2002The Applicant was granted Youth Allowance and a letter was sent notifying he would be paid Youth Allowance, as an independent person, from 25 March 2002. The letter also advised, Centrelink had recorded he was studying full-time and asked that he contact Centrelink within 14 days, if he ceased studying or his study load changed.

18/09/2002Following receipt of a data matching report that showed the Applicant was studying part-time from 11 February 2002, Centrelink sent the Applicant a letter requesting information about his study load. The letter also advised the Applicant if he was not a full-time student and in need of income support payment to contact Centrelink.

12/11/2002As a consequence of the failure by the Applicant to respond to the letter dated 18 September 2002, that requested information about his study load, Centrelink suspended his entitlement to Youth Allowance.

25/11/2002Centrelink raised a Youth Allowance debt, in the amount of $2,651.20 for the period 25 March 2002 to 14 July 2002, as throughout this period the Applicant was not engaged in full-time study.

12/10/2003The Applicant requested a review of this decision, by an Authorised Review Officer. The decision was affirmed, however, as Centrelink had not sent the Applicant a notice explaining his entitlement to Youth Allowance until 3 May 2002, this became the new start date of the debt. The change in start date caused a reduction to the debt balance and the new outstanding balance that applied was $1,728.01.

11/11/2003The Applicant lodged an appeal at the Social Security Appeals Tribunal.

24/03/2004The SSAT affirmed the decision.

30/04/2004An application for review of the SSAT’s decision was lodged at the Administrative Appeals Tribunal.

issues

5.      The issues in this matter are:

·whether the Applicant received youth allowance in the amount of $1,728.01 covering the period 3 May 2002 to 14 July 2002 to which he was not entitled; and if so

·whether a recoverable debt of $1,728.01 exists; and if so, whether the debt should be recovered.

legislative framework

6.      This matter is to be determined within the provisions of a Social Security Act 1991 (“the Act”). The relevant sections of the Act are as follows:

Qualification for youth allowance-general rule

540. Subject to this Subdivision, a person is qualified for a youth allowance in respect of a period if:

(a) either of the following applies:

(i) throughout the period the person satisfies the activity test (see Subdivision B) or is not required to satisfy the activity test (Subdivision C);

(ii) the person is a CDEP Scheme participant (see section 1188B) in respect of the period;

(b) throughout the period the person is of youth allowance age (see Subdivision D); and

(c) throughout the period the person satisfies any requirements relating to Youth Allowance Activity Agreements that apply to the person under Subdivision E; and

(d) throughout the period, the person:

(i) is an Australian resident; or

(ii) is exempt from the residence requirement within the meaning of subsection 7 (7).

Subdivision B-Activity test

Activity test

General

541.(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) the person 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); or

(c) the person takes reasonable steps, throughout the period, to comply with the terms of a Youth Allowance Activity Agreement applying to the person; or

(d) the person takes reasonable steps to comply, throughout the period, with a requirement of the Secretary notified to the person under subsection (2).

….

Undertaking full-time study

General

541B.(1) For the purposes of this Act, a person is undertaking full-time study if:

(a) the person:

(i) is enrolled in a course of education at an educational institution; or

(ii) was enrolled in the course and satisfies the Secretary that he or she intends, and has (since no longer being enrolled) always intended, to re-enrol in the course when re-enrolments in the course are next accepted; or

(iii) was enrolled in the course and satisfies the Secretary that he or she intends, and has (since no longer being enrolled) always intended, to enrol in another course of education (at the same or a different educational institution) when enrolments in the other course are next accepted; and

(b) the person:

(i) is undertaking in the particular study period (such as, for example, a semester) for which he or she is enrolled for the course; or

(ii) intends to undertake in the next study period for which he or she intends to enrol for the course;

either:

(iii) in a case to which subsection (1A) does not apply-at least three-quarters of the normal amount of full-time study in respect of the course for that period (see subsections (2) to (4)); or

(iv) in a case to which subsection(1A) applies at least two-thirds of the normal amount of full-time study in respect of the course for that period (see subsections (2) yo (4); and

(c) the course in question is an approved course of education or study (see subsection (5)); and

(d) in the Secretary’s opinion, the person is making satisfactory progress towards completing the course.

Meaning of normal amount of full-time study

541.B(2) For the purposes of paragraph (1)(b), the normal amount of full-time study in respect of a course is:

(a) if:

(i) the course is a course of study within the meaning of the Higher Education Support Act 2003; and

(ii) there are Commonwealth supported students (within the meaning of that Act) enrolled in the course;

……

Debt arising from lack of qualification, overpayment etc.:

1223.(1) Subject to this section, if:

(a) a social security payment is made; and

(b) a person who obtains the benefit of the payment was not entitled for any reason to obtain 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.

…

Secretary may write off debt

1236(1) Subject to subsection (!A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.

1236(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.

…

Waiver in special circumstances

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 false representation; or

(ii) failing or omitting to comply with a provision of this 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.

applicant’s evidence and submissions

7.      The Applicant was born in Bosnia on 15 June 1985 and was 16 years old when he enrolled in a TAFE course at Miller College, in order to qualify for and obtain a Statement of Attainment in Manufacturing and Engineering. He has now completed this course and has enrolled in and is studying further subjects to improve his qualifications. He is now employed as a third year apprentice in fitting and machining in a general engineering factory with a take home pay of approximately  $350 per week. He expects to complete his apprenticeship early in 2006 at which time he will be eligible to receive a tradesman’s take home pay of approximately $800/900 per week. Currently he lives at home with his parents and pays them approximately $150 per week towards his board.

8.      Mr Kamenjas told the Tribunal that he was about eight years old when he and his parents first arrived in Australia. Both the Applicant and his uncle stated that the Applicant’s parents, particularly his father, had some cultural difficulties in adapting to life in Australia – although recently these problems have abated. It was the Applicant’s evidence (supported by his uncle), that relations with his father had been strained, particularly at the time he left school and commenced his TAFE course, such that he left home and went to live with his uncle for some months. The Applicant at this time described himself as young, silly, dumb, arrogant, ignorant, depressed and suffering from family problems. He said his relationship with his mother was “not bad” but he was unhappy that his father was trying to “boss me around”. Both the Applicant and his uncle stated that the Applicant had now moved back happily into the family home and that the Applicant’s parents were now reasonably adjusted to living in Australia. The Applicant said he had no health problems, was progressing well in his chosen trade and was “doing all right” financially.

9.      The Tribunal notes that on 8 April 2002 the Applicant was interviewed by a social worker who formed the opinion that the conflict between the Applicant and his parents was over and above what might be described as “typical” teenager-parent conflict and that resolution was unlikely at that time, there being so much hurt and anger, no mutual respect and a high risk of physical violence. The Tribunal also notes that at the time of interview the social worker recorded that the Applicant was studying full time at TAFE.

10.     In respect of his TAFE course, the Applicant told the Tribunal that during the relevant period he was undertaking study in 11 of the 13 units that comprised his course. The Applicant was referred to his Student Record (T35/118) and taken to each listed subject. He said that apart from Engineering Calculations I. and Mechanical Components, he had attended the college in May, June and July 2002, and he had undertaken all of the remaining 11 subjects that were listed in the Student Record. The Applicant was also referred to his Enrolment Form (T5/29) where some 15 subjects are listed with a total of 30 hours per week of study. The Tribunal notes that there is some difficulty in correlating the information in this form and the information in the TAFE Students Record referred to above. In this respect, the Tribunal notes the Respondent’s submission that often enrolment forms filled out by a student with teachers on enrolment day may not accurately depict what study is finally undertaken by a student.

11.     The Tribunal notes that Miller College informed Ms Garcia (by fax dated 24 August 2004-T41/182), that the Applicant in 2002 was undertaking 12 subjects in Semester 1 and one subject in Semester 2; that a normal full-time load was 30 hours per week; that the Applicant was a full-time student in Semester 1, 2002; and that he completed six subjects in Semester 1.

12.     In a further communication to Ms Garcia the Miller College provided a copy of the Applicant’s Roll Card which records the Applicant’s attendance during each day of each week of Semester 1 and Semester 2, each of 18 weeks duration.

13.     The Applicant was referred to this record which shows that during the 72 recorded periods (mornings and afternoons for 36 days during the relevant period)he was shown as only attending 32 periods, being absent for 33 periods and not recorded for 7 periods. When asked to explain why there were so many absences recorded when it was his earlier evidence that he had attended for 11 of the 13 listed subjects, the Applicant said that each teacher varied the way they marked the roll and if you arrived late or left early some teachers would record you as being absent, while others would not. He said that because of his problems at home and his attitude at the time, he was often late or left early and this could explain the discrepancy. He also told Tribunal that he had not made an issue out of the marked absences when late or leaving early as he did not, at that time, think the circumstances were problematic. In answer to questions from Ms Garcia, the Applicant told the Tribunal that he could recall receiving letters from Centrelink about his youth allowance but that he normally did not read the back of the letters or take into account much of the detail of the letters. He said these were the first letters he had received, having been a school boy before this, and that he thought the letters were just to let him know what was happening. He told the Tribunal that he knew that he should inform Centrelink of any changes in his enrolment but he never did this as he thought he was still enrolled as a full-time student. He also said that because he had had a meeting with the Centrelink social worker in April 2002, he did not think  he had to add to what had already being said about his circumstances. The Tribunal notes the copies in the T documents of the Centrelink letters sent to the Applicant (in particular the letter dated 3 May 2002/T11/69), which required the Applicant to tell Centrelink within 14 days about events or changes in circumstances affecting his allowance, including ceasing to be a full-time student or varying his enrolment.

14.     In summary, the Applicant submitted that he thought he had done everything right in respect of his TAFE course and that he had tried as hard as he could to complete the required course work. The Applicant admitted that at the relevant time he was “young and dumb” and had unresolved issues with his parents, which led to the difficulties in him maintaining full attendance at classes in his course at Miller College. However, he firmly adhered to his statement that, at the relevant time, he was enrolled in and was undertaking coursework in 11 of the 13 subjects in which he was enrolled.

respondent’s submissions

15.     In the Respondent’s Statement of Facts and Contentions, the Respondent submitted:

“4. The Applicant lodged a claim for Youth allowance on the provisor he was studying full-time. His claim form was accompanied by an enrolment form. The Applicant’s enrolment form demonstrates he enrolled in a Statement of Attainment in Manufacturing and engineering, where he enlisted to undertake 15 subjects that represented 30 hours of study per week (T5). A normal full-time load for students studying this course in semester 1 of 2002 was 30 hours per week (T41, p.182 and T41, p.186).

5. A student record obtained from Miller TAFE indicates, the Applicant was enrolled in 6 out of 13 subjects.

6. The Respondent submits, according to the enrolment form, for a student to satisfy a normal full-time load of 30 hours per week the student is required to undertake 15 subjects. TAFE records indicate the Applicant was enrolled in 6 subjects. The Respondent contends as the Applicant was enrolled in less than three quarters of the normal full-time load he was not a full-time student and therefore not qualified for Youth allowance throughout the period 3 May 2002 to 14 July 2002.

7. The Respondent therefore asserts, having regard to section 1223(1) of the Act, payments of Youth Allowance made to the Applicant during 3 May 2002 to 14 July 2002, in the amount of $1,728.01 is a debt due to the Commonwealth.”

16.     Furthermore in respect of waiving the debt it was submitted:

“12. The Applicant is 19 years of age and single. Despite having arrived in Australia, at the age of 11 years, with his parents under refugee status the Applicant has demonstrated his ability to succeed by securing an apprenticeship that earns him an income of $250 per week. His earnings and the benefits he is currently gaining and will gain, particularly, as a result of his apprenticeship places him in a a better overall position than young adults his age who rely solely on Centrelink payments. The Applicant has good health and currently resides with his parents where his living costs amount to $150 per week. The Respondent acknowledges the Applicant’s relationship with his immediate family broke down, in 2002, and this caused him to move in with an uncle, however, submits breakdowns in relationships between teenagers and parents is not uncommon. The Respondent also draws the Tribunal’s attention to the fact it appears the Applicant has resolved at least some of the issues he had with his parents as he is currently living in their home. Furthermore, the Applicant is fortunate to have a family member, such as his uncle, who was willing to provide him with support and a home when he was temporarily unable to live with his parents.”    

17.     In her oral submissions, Ms Garcia said that the evidence presented to the Tribunal at the hearing did not alter the Respondent’s view, as set out above. In summary, it was submitted that the Applicant had not undertaken at least 75 per cent of the normal full-time load of the relevant course and therefore does not satisfy the necessary activity test to qualify for youth allowance.

18.     That being so, it was submitted that payment to the Applicant of youth allowance of $1,728.01 is a debt due to the Commonwealth.

19.     In respect of special circumstances, it was submitted that the Applicant’s circumstances were not such as to be seen as uncommon, unusual or exceptional and therefore the debt should not be waived. 

consideration

20.     At the outset, the Tribunal finds the Applicant to be an intelligent, bright young man who is now successfully getting on with his life. Furthermore, the Tribunal finds the Applicant to be a credible witness, who answered the questions put to him in an honest and forthright fashion and to the best of his ability.

21.     There is no disagreement between the parties and the Tribunal finds that during the period 3 May 2002 to 14 July 2002, the Applicant received youth allowance in the amount of $1,728.01.

22.     The first and crucial issue is whether the Applicant was entitled to obtain this benefit.

23.     There is no dispute between the parties and the Tribunal accepts that the Applicant, at the relevant time, was enrolled in a course of education at an educational institution and was undertaken course work related to his enrolment.

24. The issue is whether or not the Applicant was undertaking at least three quarters of the normal amount of full-time study in his course, at the relevant time, such that he satisfied the activity test provided for by the Act.

25. The evidence before the Tribunal from Miller College, is that the Applicant was enrolled in 12 subjects in Semester 1, one subject in Semester 2, that the normal full-time load of the course was 30 hours per week, that the Applicant was a full-time student in Semester 1, 2002 and that he completed 6 subjects. It is not clear whether these 6 subjects completed refer to Semester 1 only. However, in the Tribunal’s view, whether these subjects were completed in Semester 1 is not relevant. Under the relevant provisions of the Act, the important requirement is that the required course work be undertaken, not whether a student successfully completes a subject or fails a subject. On the Miller College evidence as set out above the Tribunal is of the view that the Applicant would meet the activity test.

26.     However, the issue is clouded by the student Roll Card which, as outlined above, shows the Applicant attended approximately one half of the study periods during the relevant time. The Tribunal has some difficulty in accepting the Roll Card as a true reflection of the Applicant’s course attendance. There is no evidence before the Tribunal from any individual teacher to support the consolidated entries in the Roll Card and the head teacher’s response to questions put to him in writing by Ms Garcia about the Applicant’s status as a full-time student in Semester 1 in 2002 are, in the Tribunal’s opinion, less then forthcoming. On balance the Tribunal accepts the Applicant’s evidence that during May, June and July 2002 he was in attendance at Miller College for 11 of his enrolled subjects.

27.     After careful consideration of all of the material before it and taking into account the submissions of both parties, the Tribunal is satisfied that during the relevant period, Mr Kamenjas was undertaking course work in 11 subjects and the Tribunal so finds. In respect of the number of subjects composing a full-time load in the relevant course, the Tribunal accept that the correct total number of subjects is 13, with a normal full-time load of 30 hours per week.

28.     That being so, the question as to whether the course comprises 12 subjects in Semester 1 (as stated by Miller College), or 13 in both Semesters 1 and 2 matters not. In either event the Tribunal is satisfied that the Applicant was undertaking at least 75 per cent or the required coursework and the Tribunal so finds.

29.     In arriving at the above findings, the Tribunal has taken into account that the Applicant’s enrolment form shows that the Applicant applied for and enrolled in 15 subjects. The Tribunal accepts the Respondent’s submission that enrolment forms do not necessary show accurately what a student subsequently is enrolled in. All of Miller College’s subsequent records show the course to consist of 13 subjects and the student to be enrolled in 13 subjects over two Semesters.

30.     The Tribunal therefore is satisfied that the Applicant, at the relevant time, satisfied the required activity test, such that he meets the qualifications necessary for youth allowance.  

31.     That being so, the Tribunal finds that there is no youth allowance debt of $1.728.01 due to the Commonwealth by the Applicant. It follows that any consideration of waiving due to special circumstances is not relevant.

32.     The Tribunal sets aside the decision under review and in substitution therefor determines that Fahrudin Kamenjas does not have a youth allowance debt of $1,728.01 due to the Commonwealth.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Way

Signed:         Neil Glaser
  Associate

Date of Hearing  11 February 2005      
Date of Decision  31 March 2005
Representative for the Applicant               Self-Represented
Advocate for the Respondent                   Ms Garcia