Kanak; Department of Employment, Education and Training
[2000] AATA 1156
•22 December 2000
DECISION AND REASONS FOR DECISION [2000] AATA 1156
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1996/587
GENERAL ADMINISTRATIVE DIVISION )
Re SECRETARY, DEPARTMENT OF EMPLOYMENT EDUCATION AND TRAINING
Applicant
And DOMINIC KANAK
Respondent
DECISION
Tribunal Ms G Ettinger Senior Member
Date22 December 2000
PlaceSydney
……….…………………………
Ms G Ettinger
Senior Member
Re SECRETARY, DEPARTMENT OF EMPLOYMENT EDUCATION AND TRAINING
Applicant
And DOMINIC KANAK
Respondent
DECISION
Overpayment No.1
I find that Mr Kanak is eligible for that part of the ABSTUDY paid to him up to and including the end of the pay period which included the day on which he was advised that he was not accepted for the course.
The $72. Over-recovered which was not an overpayment as conceded by Mr Peek must also be recredited to Mr Kanak.
I find further that whatever travel costs were incurred in attending the interview at the University of Western Sydney in connection with Mr Kanak's application for the Diploma in Education must be credited to him as these were recovered pursuant to administrative error (section 289 of the Act), in breach of the Guidelines (1992) C.2.7.
Overpayment No.2
I find that waiver pursuant to section 289 of the Act is not appropriate in relation to Overpayment No.2. other than in connection with the $72. (as conceded by the Applicant), which had been over-recovered and had to be recredited.
Overpayment No.3
I did not find grounds pursuant to section 289 of the Act to waive the overpayment in relation to Overpayment No.3.
Overpayment No.4
I find no waiver appropriate with regard to Overpayment No.4, noting however t that the Applicant has conceded that $867.95 of Overpayment No.4 was over-recovered (Applicant's Written Submissions 15 May 2000). Appropriate action must therefore be taken in that regard.
Overpayment No.5
I find that as Mr Kanak had not been enrolled at the University of Western Sydney at the relevant period, he was not entitled to ABSTUDY for Semester I 1994 for the period 28 February 1994 until 5 March 1994 for which he had been paid. There was therefore no basis for waiver pursuant to section 289 of the Act.
………………………………
Ms G Ettinger
Senior Member
CATCHWORDS
ABSTUDY – effect of garnishee and waiver provisions of the Student and Youth Assistance Act – appeal by DEETYA from SSAT decision to waive overpayment – jurisdictional issue – Full Federal Court finding that the SSAT, and therefore the AAT has power to review the decisions regarding ABSTUDY overpayment amounts as well as whether waiver is appropriate -
LEGISLATION
Student and Youth Assistance Act 1973 ss 5C(c), 289, 290C
Student and Youth Assistance Amendment (Youth Training Allowance) Act (No. 2) 1995
CASES
Secretary, Department of Employment, Education, Training & Youth Affairs v Allen and Another (1998) 81 FCR 325
Secretary, Department of Employment, Education, Training & Youth Affairs v Mason Allen and Anor [1999] FCA 25
Secretary, Department of Employment, Education, Training and Youth Affairs v Prince (1997) 50 ALD 186
REASONS FOR DECISION
22 December 2000 Ms G Ettinger Senior Member
The decision under review before the Administrative Appeals Tribunal, ("the Tribunal") was the decision of the Social Security Appeals Tribunal ("the SSAT"), of 29 February 1996, (T2), which varied the decision of an authorised review officer of the Secretary, the then Department of Employment Education and Training and Youth Affairs ("DEET"), of 29 August 1995 (T6). The authorised review officer had affirmed the decision of the delegate of DEET of 10 August 1995 to garnishee a lump sum payment made to Mr Dominic Kanak by his employer in order to recover Mr Kanak's Aboriginal Study Assistance Scheme ("ABSTUDY") debt by means of garnishee proceedings. The garnishee notices were issued on 13 April 1994 (T7/A42) and 11 July 1995 (T5/A18) pursuant to section 42 of the Student and Youth Assistance Act 1973 (Cth) ("the Act").
At the Tribunal hearings the Applicant Secretary Department of Employment, Education, Training and Youth Affairs ("DEETYA") (now known as the Department of Education Training and Youth Affairs ("DETYA")) was represented by Mr G Peek, of the Australian Government Solicitor and Mr Dominic Kanak, the Respondent in these proceedings, by Ms J Keys of Counsel. Mr Kanak gave oral evidence before the Tribunal.
The details regarding the alleged overpayments were extremely difficult for the parties to clarify. I therefore adjourned to give them an opportunity to do so and to make further submissions, both written and oral. The Applicant's written closing submissions were received on 15 May 2000. The Respondent's final closing submissions were received on 3 July 2000, and the Applicant's final written submissions in reply, on 11 August 2000.
ISSUES BEFORE THE TRIBUNALThe issues before the Tribunal were:
(a)Whether Mr Kanak had incurred debts to the Commonwealth arising from amounts paid to him under the ABSTUDY scheme in 1992, 1993 and 1994;
(b)Whether Mr Kanak was entitled to waiver of all or part of the debts incurred in respect of ABSTUDY received by him in relation to studies undertaken in 1992, 1993 and 1994 (pursuant to section 289 or 290C of the Student and Youth Assistance Act 1973 ("the Act"), as amended by the Student and Youth Assistance Amendment (Youth Training Allowance) Act (No. 2) 1995).
The five alleged overpayments to be considered in relation to (a) above, were payments received by Mr Kanak for assistance with the following courses of study. Over the course of the various hearings and written submissions made, there was disagreement over what amounts Mr Kanak had received by way of ABSTUDY, what his entitlements were, and what amounts had been recovered. Mr Peek in his written submissions of 15 May 2000, informed me that "The respondent's Revised Schedules confirm that the parties are now in agreement as to the amounts of the overpayments themselves." However, I have noted as appropriate in the discussion of the individual Overpayments which follows, the extent of the continuing disagreement about some figures.
(i)OVERPAYMENT NO. 1 ("Overpayment No.1")
DEETYA Reference 2A200297G
Diploma of Education at the University Western Sydney (Macarthur) in 1992; $4,436.73.Following a review of the calculations made by the Applicant DEETYA during the hearing before the Tribunal, Mr Peek acknowledged that an error had been made in the calculations of Overpayment No.1 in 1992, in the amount of $72. The total amount alleged to be owing under Overpayment No.1 was therefore $4,364.73.
Mr Peek stated in his written submissions dated 15 July 1999:
"The result of the review of the calculations is that an error has been made in the calculation of overpayment 1 in 1992, in the amount of $72.00. I am instructed that the applicant will now concede that this amount of the overpayment should be waived under section 289 of the Student and Youth Assistance Act 1973."
(ii)OVERPAYMENT NO. 2 ("Overpayment No.2")
DEETYA Reference 2A300568H
Bachelor of Arts (Education) Honours at Deakin University in 1992; $3,908.30The Applicant also conceded an error of $72. with regard to Overpayment No.2. Mr Peek wrote in paragraph 6 of his Submissions of 15 May 2000 with regard to that:
"Rectification of this by the Tribunal could be achieved under various powers available to it, such as waiver under section 289 of the Student and Youth Assistance Act 1973 (the Act). The applicant suggests that as the error was one which went to the respondent's entitlement to ABSTUDY in the course of calculating the amount of this overpayment, the preferable course would be for the Tribunal to make a factual finding which adjusts the amount of this overpayment accordingly."
(iii)OVERPAYMENT NO. 3 ("Overpayment No.3")
DEETYA Reference 3A300098B
Bachelor of Arts (Education) Honours at Deakin University in 1993; $2,576.35;
(iv)OVERPAYMENT NO. 4 ("Overpayment No.4")
DEETYA Reference 3A300750D
Bachelor of Arts (Education) Honours at Deakin University in 1993; $1,429.28;
It was agreed between the parties that the incidentals component of $315. or $321.was an overpayment.
(v)OVERPAYMENT NO. 5 ("Overpayment No.5")
DEETYA Reference 4A260101L
Master of Applied Science (Social Ecology) at the University of Western Sydney, Hawkesbury in 1994; $368.15. or $374.13
LEGISLATIVE FRAMEWORK
The relevant legislation in this matter was the Student and Youth Assistance Act 1973 ("the Act"), in particular section 5, and sections 289 and 290C, as repealed and substituted by the Student and Youth Assistance Amendment (Youth Training Allowance) Act (No. 2) 1995.
Section 5C of the Act deals with principles of administration of the Act. As there is no legislation governing payment of ABSTUDY, this section provides a framework for administering payment of the ABSTUDY Scheme. The section is in the following terms:
"Principles of administration
5C. In administering this Act, the Secretary is to have regard to:
the desirability of achieving the following results:
the ready availability to members of the public of advice and information services relating to benefits under this Act;
the ready availability of publications containing clear statements about entitlements under this Act and procedural requirements;
the delivery of services under this Act in a fair, courteous, prompt and cost-efficient manner;
a process of monitoring and evaluating delivery of programs with an emphasis on the impact of programs on people who receive benefits under this Act;
the establishment of procedures to ensure that abuses of the schemes for benefits under this Act are minimised; and
the special needs of disadvantaged groups in the community; and
the need to be responsive to Aboriginality and to cultural and linguistic diversity; and
the importance of the systems of review of decisions under this Act; and
the need to apply government policy in accordance with the law and with due regard to relevant decisions of the Administrative Appeals Tribunal and the Social Security Appeals Tribunal.
Note: In administering this Act; the Secretary is also bound by the Privacy Act 1988 and by the provisions of this Act concerning confidentiality – see Division 3 of Part 10."
Section 289 of the Student and Youth Assistance Act 1973 deals with waiver of debt arising from administrative error of the Commonwealth, and states as relevant:
"Waiver of debt arising from error
Administrative error289(1) 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).
…
Proportion of a debt
289(3)For the purposes of this section, a proportion of a debt may be 100% of the debt."
Section 290C of the Student and Youth Assistance Act 1973 deals with waiver under special circumstances of debts raised on or after 1 January 1996 or to the balance of debts as at 1 January 1996. I noted that the SSAT did not find it necessary to deal with section 290C as the information before the SSAT seems to have indicated that the debt Mr Kanak owed had been recovered in full prior to 1 January 1996 (T2/A14, paragraph 43).
I noted that in addition to the other provisions of the legislation as detailed below, which applied to the alleged overpayments subject of this application, section 290C of the Act as amended by the Student and Youth Assistance Amendment (Youth Training Allowance) Act (No.2) 1995
"Waiver in special circumstances
290C The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
the debt did not result wholly or partly from the debtor or another person knowingly:
making a false statement or a false representation; or
failing or omitting to comply with a provision of this Act; and
there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
it is more appropriate to waive than to write off the debt or part of the debt.
Note: Section 287 allows the Secretary to write off a debt on behalf of the Commonwealth."
The Applicant provided to the Tribunal copies of Chapter C of the ABSTUDY Guidelines from 1992 (dated 15 November 1991) and 1993 (dated 30 October 1992), and also Parts 3 and 4 of the Guidelines dated 14 September 1993.
The relevant sections of Chapter C, ABSTUDY Guidelines 1992 dated 15 November 1991 follow:
"C.1 Eligibility Overview
A student is eligible for an ABSTUDY award if he/she meets:
·the general ABSTUDY eligibility criteria indicated below (refer C.1 (a), (b) & (c); and
·the eligibility criteria for the type of award for which she/he is applying (refer C.2).
The general ABSTUDY eligibility criteria are:
the student is an Aboriginal or Torres Strait Islander person (refer C.3);
the student is enrolled or intends to enrol in an approved course of study (refer C.4); and
the student is not receiving or will not receive any other significant form of financial assistance for the proposed course of study (refer C.5).
C.2Types of Awards
C.2.1 Introduction
The following types of ABSTUDY awards may be approved:
…
·Tertiary - Full-Time (refer C.2.4);
·Tertiary - Part-Time (refer C.2.5);
…
Each award has a separate set of eligibility conditions and entitlement structure.
In certain conditions more than one award may be held concurrently (refer C.2.9)
…
C.2.4 ABSTUDY TERTIARY AWARDS
An ABSTUDY Tertiary Award may be approved where:· a student has passed the minimum secondary school leaving age as defined by the relevant State/Territory education authority; and
· meets the specific eligibility criteria of the particular Tertiary award she/he is applying for.
C.2.5 Tertiary Full-Time Award
Eligibility
A Tertiary Full-Time Award may be approved if the student:
(a)is an Aboriginal or Torres Strait Islander person (refer C.3);
(b)is enrolled or intends to enrol in an approved course of post-secondary studies (refer C.4);
(c)is not receiving or will not receive any other significant form of financial assistance for the proposed course of studies (refer C.5);
(d)is studying a full-time workload (refer C.6); and
(e)is making satisfactory progress (refer C.6).
…
Benefits
A student approved for a Tertiary Full-Time Award may be entitled to the following benefits:·Living Allowance (refer E.3);
·Dependant Spouse Allowance (refer E.4);
·Pensioner Education Supplement (refer E.5);
·Incidentals Allowance (refer E.6);
·Fares Allowance (refer E.9);
·Away-from-Base Entitlements (refer E.10); and/or
·Child Care Assistance (refer E.12).
…
C.2.6Tertiary Part-Time Award
Eligibility
A Tertiary Part-Time Award may be approved if the student:
is an Aboriginal or Torres Strait Islander person (refer C.3);
is enrolled or intends to enrol in an approved course of post-secondary studies (refer C.4);
is not receiving or will not receive any other significant form of financial assistance for the proposed course of studies (refer C.5); and
is not studying a full-time workload (refer C.6)
…
Benefits
A student approved for Tertiary Part-Time Award may be entitled to the following benefits:·Part-Time Allowance (refer E.7)
·Fares Allowance (refer E.9); and/or
·Away-from-Base Entitlements (refer E.10).
…
C.2.7 Testing and Assessment Award
Eligibility
Testing and Assessment Award may be approved if the student:(a) is an Aboriginal or Torres Strait Islander person (refer C.3);
(b)seeks to enrol is an approved tertiary course (refer C.4) and is required to travel away from his/her normal place of residence to attend a selection test or an interview to determine suitability for an acceptance into the course, where such a test/interview is a normal requirement for admission to the course; and
(c)is not receiving or will not receive any other significant form of financial assistance for the test/interview (refer C.5).
…
Benefits
A student approved for Testing and Assessment Award may be entitled to the following benefits:
· Fare Allowance (refer E.9); and/or
· Away-from-Base Entitlements (refer E.10).
…"
BACKGROUND
Mr Kanak is an Indigenous person, who between 1992 and 1994 attended the University of Western Sydney and Deakin University and received assistance from the Commonwealth under the ABSTUDY in relation to five different enrolments or purported enrolments which were the subject of these proceedings.
Mr Kanak was an employee of the Department of Employment and Training (DEET) from 1987 to 1995. He worked at the Wagga Wagga office of DEET until 1988/89 when he was relocated to Sydney.
Mr Kanak told the Tribunal that during his employment with DEET he worked as a Vocational Relief Officer which required him to work with Aboriginal and Torres Strait Islander students in a number of locations throughout the state, (the last of which was in Wagga Wagga). His duties involved arranging tutorials, providing counselling and acting as a liaison between the community and the institutions the students were attending. (Transcript 22.6.99, p18) He told me that the vocational officer position was an "identified position" which meant:
"Identified positions were positions that were to be recruited by the Department and for Aboriginal and Torres Strait Islander people to be employed with the Department to work with Aboriginal and Torres Strait Islander people as students."
He added that this meant the office holders had to have a knowledge and understanding of Aboriginal culture. Part of the duties included assisting students complete applications for ABSTUDY.
He stated that his position was abolished in 1988/89, and that from then on, he worked as a Special Projects Officer and was transferred to Sydney. This position did not have specified duties but required him to write reports on matters such as the Royal Commission into Aboriginal Deaths in Custody. Mr Kanak said that in 1993 he was also DEET's International Indigenous Peoples' Year Coordinator (Transcript 22.6.99, p19).
On 13 April 1994, DEET, the then employer, through its Debt Management Unit, issued a Demand under section 42 of the Act for an amount of $9,061.66, to be garnisheed from Mr Kanak's salary or entitlements at the rate of $200. per fortnight (T7/A42). On 11 July 1995, DEET issued a further Garnishee Notice under section 42 of the Act for an amount of $5,193.37 to be deducted from any lump sum payment to be paid to Mr Kanak on termination of his employment with DEET (T5/A19). Mr Kanak said that he had been offered a voluntary redundancy which had finally been processed in 1995. Mr Kanak said in his evidence that he understood that the overpayments had been deducted from his payments on redundancy. He said that there had also been other amounts repaid both prior and since the voluntary redundancy.
On 29 August 1995, an authorised review officer of DEET affirmed the decision of DEET to garnishee a lump sum payment made to Mr Kanak by his then employer on cessation of his employment in August 1995, in order to recover overpayments made to Mr Kanak under the ABSTUDY Scheme (T6/A24).
In its Statement of Reasons for Decision dated 23 November 1995, DEET stated that it was not clear from Mr Kanak's letter of 27 September 1995 to the SSAT which decision he was appealing. However it decided that as the decision to garnishee Mr Kanak's lump sum payment was the only decision that had been internally reviewed, this was the only decision able to be reviewed at that time (T6/A21).
When the SSAT heard the matter on 29 February 1996, it decided that the decision of the Applicant DEET, as affirmed by an authorised review officer on 29 August 1995, should be varied. It reviewed five separate debts alleged to be owed by Mr Kanak, and found that only one of the five debts should be waived on the basis of administrative error pursuant to section 289(2) of the Act. This section provided that DEET must waive a debt if the debt arose solely because of an administrative error made by the Commonwealth. In relation to the other four debts, the SSAT found that there were no grounds in order to waive recovery. The SSAT at paragraph 43 of its decision at T2/A14, also stated:
"The tribunal noted that there are new provisions with respect to waiving a debt under special circumstances. However, this provision only applies to debts raised on or after 1 January, 1996 or to the balance of debts as at 1 January, 1996. In Mr Kanak's case, the debt was fully recovered prior to 1 January, 1996. Therefore, the tribunal did not make specific findings with respect to Mr Kanak's application under these provisions."
Therefore in effect, Mr Kanak's appeal before the SSAT was partially successful as the SSAT decided that $3,980.30 of the amount alleged owing in regard to his application for assistance for a Bachelor of Arts (Education) Honours course at Deakin University in 1992 was not a debt. In these Reasons for Decision, I have referred to this alleged overpayment as Overpayment No.2. The SSAT held that the above mentioned amount should be refunded to Mr Kanak. Following the decision of the SSAT, DEETYA applied for a stay of that decision. The application for a stay was heard by the Administrative Appeals Tribunal and the decision stayed on 16 May 1996. Therefore, no amount in relation to this alleged overpayment has been refunded to Mr Kanak.
I noted also that at T10/A101, which was a summary of debt collection activity by DEET with a facsimile date imprint of 21 November 1995, the following statement was made: "All interest and late payment charges that had been incurred, have been removed." The document "Applicant's Facts and Contentions" dated 18 June 1999 refers to this on page 7:
"Re 4:3: Section 41 of the Act contains a substantive discretion to "waive" late payment and interest charges, which it would be open to the Tribunal to exercise. It appears that the applicant has already done so in relation to any late payment and interest charges which accrued in relation to the overpayments" (T-Documents, A101).
The Applicant, Secretary Department of Employment, Education, Training and Youth Affairs ("DEETYA"), (formerly DEET) (and now known as Department of Education Training and Youth Affairs) ("DETYA") then made an application for review (T1) which was received by the Tribunal on 9 May 1996.
Senior Member Allen of the Tribunal made a decision in this matter on 2 October 1996 with regard to this Tribunal's powers pursuant to section 309(c) of the Act. Senior Member Allen considered the application of section 42 of the Act, which related to the meaning of a "recoverable amount". He held that the Tribunal had jurisdiction to determine the amount of overpayment of ABSTUDY, if any. In the course of his decision Senior Member Allen, as cited by Burchett J, at 328:
"9. As I read s 42, before the Secretary can give a notice to a third party requiring payment of any amount to the Commonwealth he must first make a decision as to what amount is then due and owing to the Commonwealth. That in turn requires the Secretary to ascertain what was the recoverable amount, and whether any repayments have been made.
10. The decisions made by the Secretary in calculating the amount or sum to be specified in the notice issued under section 42(3) are decisions under the Act relating to the recovery of amounts as per wording of paragraph 309(c) of the said Act.
11. It is therefore open to the Respondent upon this review to challenge the amounts alleged by the Applicant to have been overpaid."
DEETYA appealed to the Federal Court which handed down its decision in Secretary, Department of Employment, Education, Training and Youth Affairs v Allen & Anor (1998) 81 FCR 325, Burchett J at 327 referred to the complexity of Mr Kanak's situation in the following terms:
"Over a period of some three years in 1992, 1993 and 1994, Mr Kanak attended a number of tertiary institutions, receiving Commonwealth assistance by way of ABSTUDY payments. The institutions and the bases on which Mr Kanak was enrolled in them were various. At least some of the payments received by him were or included amounts to which he was not entitled. Some refunds have been made by him, amounts have been deducted from payments to which he was entitled, and substantial amounts have been recouped by the issue of statutory garnishee notices pursuant to s 42 of the Student and Youth Assistance Act 1973 (Cth)."
DEETYA appealed further, the Full Federal Court handing down its decision in Secretary, Department of Employment, Education Training & Youth Affairs v Allen [1999] FCA 25. At paragraph 28 of the Full Federal Court decision, the Court held:
"We agree, respectfully, with his Honour [Burchett J in Secretary Department of Employment, Education, Training & Youth Affairs v Allen (1998) 81 FCR 325] that the SSAT erred in deciding that it did not have power to review these anterior decisions and that the SSAT had such a power. In turn the Administrative Appeals Tribunal had power to review and rectify the error made by the SSAT. There is nothing further that we can usefully add. Accordingly, we would dismiss the appeal with costs."
The matter then came on for hearing before me on 22 and 23 June 1999. One of the problems encountered by Mr Kanak's legal representatives at the Tribunal was that the exact amounts of ABSTUDY received by Mr Kanak, and the alleged overpayments were difficult to ascertain. For this reason, after taking all the evidence and hearing the parties' submissions, I adjourned the hearing for the Applicant, DEETYA to produce its calculations of the overpayments it claimed that Mr Kanak had incurred, in a more user friendly presentation.
Mr Peek who appeared for the Applicant provided the Tribunal with a "Schedule of Calculations and Recovery Action" on 15 July 1999, and Ms Keys for the Respondent provided a submission in response on 28 July 1999. A further hearing was held on 21 September 1999 which concluded with a direction to the Applicant to produce further summaries of the alleged overpayments and recoveries of ABSTUDY in relation to Mr Kanak, and gave the parties the opportunity of making written closing submissions.
Several further documents were received by the Tribunal with final written submissions made on 11 August 2000.All the material before me has been taken into consideration in making my decision.
EVIDENCE BEFORE THE TRIBUNALThe Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and the following exhibits:
DESCRIPTION OF ITEM DATE NAME
1992 Application for ABSTUDY (Tertiary) Date stamped 10 March 1992 Exhibit A1
Application for ABSTUDY by Dominic Kanak Date stamped 14 February 1992 Exhibit A2
Application for ABSTUDY by Dominic Kanak Date stamped 22 December 1992 Exhibit A3
Application for ABSTUDY by Dominic Kanak 5 May 1993 Exhibit A4
Application for Leave by Dominic Kanak 14 July 1992 Exhibit A5
Application for Leave by Dominic Kanak 31 August 1992 Exhibit A6
Memorandum from Dr Peter Meiser (UWS) to Eileen Hinton (DEET) regarding travel funding request of Dominic Kanak. 31 January 1994 Exhibit A7
Letter from Mary Lovett (DEET) to Dominic Kanak. 19 December 1995 Exhibit A8
Facsimile cover sheet from Dr John Henry (Deakin University) to Dominic Kanak, enclosing memorandum and note 20 December 1992 Exhibit R1
Letter from Roslyn Field (DEET) to Dominic Kanak. 16 March 1992 Exhibit R2
Letter from Dr John Henry (Deakin University) to Sandra Houghton (DEET). 12 May 1993 Exhibit R3
Letter from Benefits Control Unit (DEET) to Fraud Prevention Unit. 2 April 1993 Exhibit R4
Facsimile cover sheet from John Maskell (Deakin University) to Dominic Kanak. 2 July 1993 Exhibit R5
ABSTUDY Notice of Assessment to Dominic Kanak for his daughter 13 April 1995 Exhibit R6
ISSUES RELATING TO OVERPAYMENTS
I noted that there were before me five separate alleged overpayments of ABSTUDY said to have been received by Mr Kanak. I examined each item of overpayment separately, attempted to ascertain what had been repaid, and considered whether Mr Kanak had an entitlement to AUBSTUDY with regard to a particular course of academic study, taking into consideration the waiver provisions pursuant to sections 289 and 290C of the Act as appropriate. As detailed above, Section 290C of the Act deals with waiver under special circumstances of debts raised on or after 1 January 1996 or to the balance of debts as at 1 January 1996. I noted that the SSAT did not find it necessary to deal with section 290C as the information before the SSAT indicated that the debt Mr Kanak owed had been recovered in full prior to 1 January 1996 (T2/A14, paragraph 43).
It was difficult to ascertain from the many sets of figures before me whether all overpayments had been recovered. However I relied on Mr Peek who said:
"As at October 1995 all of the amounts claimed as overpayments against Mr Kanak had been recovered." (Transcript 21.9.99, p2)
Ms Keys submitted that:
"What I have to say is there is probably more than the total amount, if I can use that expression, that has been recovered. The applicant's schedule of calculations, the user friendly schedule of calculations, does not take into account – it actually excludes amounts that have been withheld from other payments …" (Transcript 21.9.99, p3).
I noted that the Full Federal Court in Secretary, Department of Employment Training and Youth Affairs v Allen and Anor (supra) held that the Tribunal's power on reviewing a decision relating to recovery of an amount paid under a Special Education Assistance Scheme under section 323(c) of the Act, extended to determining the amount of any overpayment. This Tribunal thus may exercise that same power.
Section 289 of the Act states that where the Tribunal finds that a debt or a proportion of a debt is "attributable solely to administrative error made by the Commonwealth", then that debt must be waived if payments were received in good faith.
In considering waiver pursuant to section 289 of the Act, I took into account various criteria including whether any debt had arisen solely because of administrative error made by the Commonwealth; and if so whether Mr Kanak had received the payments which gave rise to the alleged debts in good faith.
I noted that pursuant to section 42 of the Act, a notice dated 13 April 1994 for recovery of $9,061.66 and a notice dated 11 July 1995 for recovery of $5,193.37 issued to Mr Kanak. Adjustments had been made deducting late payment charges and interest included in earlier amounts, and as they had been deducted they did not concern me here, so I have not detailed them. The evidence before me was that all overpayments had been recovered but that there had been some recovery of amounts which were not overpayments. These are discussed further on in these reasons for decision. I moved then to consider the five individual payments.
DETAILS OF ALLEGED OVERPAYMENTS
OVERPAYMENT NO.1
DEETYA Reference 2A200297G
University of Western Sydney 1992
applicant's argument
The Applicant alleged that Overpayment No.1 occurred as a result of a payment of ABSTUDY to Mr Kanak in relation to study for a Diploma in Education at the University of Western Sydney (Macarthur) in 1992. Exhibit A1 recorded that the 1992 application for ABSTUDY dated 2 February 1992 was received by the Applicant on 10 March 1992. The alleged overpayment represented the whole of the ABSTUDY paid to Mr Kanak of $4,436.73. This amount of $4,436.73 was made up of:
· Part-Time Allowance of $480.00;
· Fares Allowance (from MacKay to Sydney on 5 & 17 April 1999) of $1,516.00;
· Away-from-Base Entitlements of $2,512.73,
· less $72. that was recovered from the Part-Time Allowance.
Following the adjournment of the hearing for the Applicant to produce its calculations of the alleged overpayments in a more user friendly presentation, Mr Peek stated on 15 July 1999:
"The result of the review of the calculations is that an error has been made in the calculations of overpayment 1 in 1992, in the amount of $72.00. I am instructed that the applicant will now concede that this amount of the overpayment should be waived under section 289 of the Student and Youth Assistance Act 1973."
Additional information provided by DEETYA on 15 July 1999 to the Tribunal stated that the initial overpayment was raised on 12 May 1992 and totalled $1,996. The Away-from-Base Entitlement was added to the total debt on 31 January 1994. According to the Applicant, the final repayment towards this debt was made on 19 December 1994.
The Applicant relied on an enrolment check conducted by the University dated 17 August 1992 which indicated that Mr Kanak "did not commence semester 1" and was "not enrolled in course" (T7/A 59).
Respondent's Argument
Mr Kanak told the Tribunal that in 1992 when he worked in Sydney as a Special Projects Officer, he enrolled in a thesis in Arts Education at Deakin University. Mr Kanak said that he also made an ABSTUDY application to the University of Western Sydney to do studies in education. He said he had asked for special advanced standing because he had undertaken previous studies in education. He said he had "attended some classes ….. so I considered that I'd applied for and did work in the course". (Transcript 22.6.99, p41) Mr Kanak could not recall when he had been notified that his application for advanced standing in the course had been refused, but agreed in cross-examination that it must have been before the end of Semester 1 in 1992. Mr Kanak said that he thought he did deliver some information to DEET after he heard of his non-acceptance into the course, and blamed the non-receipt on possible administrative failure by DEET, misfiling and other situations.
Ms Keys in written closing submissions of 3 July 2000, submitted that the only record produced by the Applicant regarding Mr Kanak not being enrolled at UWS was the pro-forma Enrolment Check Anomaly of 17 August 1992. She submitted that the document was inadequate because its author was not identified, the source of the information was unknown, and the accuracy uncertain.
Mr Kanak's explanation with regard to enrolment in two different courses simultaneously was that it was based on his understanding of "Studybank" (DEET's study leave procedures), and his potential redundancy.
The ABSTUDY Guidelines 1992 (dated 15 November 1991) stated that pursuant to Guideline C1(b), a student to be eligible for ABSTUDY, must be "enrolled or intends to enrol in an approved course of study". Guideline C 2.6 (15 November 1991) stated that a student was eligible for a tertiary part-time award if the student "intends to enrol in an approved course of study of post-secondary studies."
I noted Mr Peek's submission which was as follows:
"The applicant submits that there is the explanation of the purpose of that provision is to allow people a grant in order to pursue an intention or on the evidence of an intention however should that intention not crystallise into an enrolment that results in full-time study, then that becomes a debt that is recoverable by exercise of the same discretion that would have made the grant."
Ms Keys, in her written submissions to the Tribunal dated 28 July 1999 at page 2, stated that as Mr Kanak had:
"… applied for enrolment and completed initial components – he should be regarded as having satisfied the eligibility criteria entitling him to part time Allowance, Fares Allowance and Away from Entitlements."
Ms Keys argued that in the alternative, Mr Kanak should have been regarded as eligible for a Testing and Assessment Award and therefore would be eligible for Fares Allowance and Away-from-Base Entitlements. Guideline C.2.7 (15 November 1991) stated that:
"A Tertiary Part-Time Award may be approved if the student:
is an Aboriginal or Torres Strait Islander person (refer C.3);
seeks to enrol in an approved tertiary course (refer C.4) and is required to travel away from his/her normal place of residence to attend a selection test or an interview to determine suitability for and acceptance into the course, where such a test/interview is a normal requirement for admission to the course; [my emphasis]
…"
Ms Keys also argued in the alternative, that Mr Kanak should be able to retain amounts paid to him until the rejection of his application was notified. She argued, that this was because the 1994 ABSTUDY Guidelines referred to at T8/A71 stated the following: "Student entitled to receive living allowance until the end of pay period which includes the day on which the student was advised that s/he was not accepted". (ABSTUDY PGM 7 –24). Ms Keys contended in her written submissions dated 28 July 1999 that:
"… in view of the comparative content and structure of the 1991, 1992 and 1993 guidelines, it is likely that the matters dealt with in 1994 ABSTUDY PGM 7-24 and 7-52 are dealt with comparably in other chapters of the 1991, 1992 and 1993 guidelines."
the tribunal's conclusions
I noted that Mr Kanak's 1992 Application for ABSTUDY (Tertiary) was dated 2 February 1992 and received on 10 March 1992 (Exhibit A1). In his application Mr Kanak stated that he would be studying "Teaching Experience – Research Methodology" in Semester 1 and "Teaching Experience – Educational Enquiry" in Semester 2 for a total of 25 hours per week. Mr Kanak also stated that he would be studying full-time for a full academic year in 1992, and that he started his studies on 2 February 1992.
Mr Kanak's application also stated that he would be living away from his home in Queensland. He told me at the hearing on 21 September 1999 that he maintained his home address in Queensland but that he was doing external studies at Deakin University and as part of the Enclave arrangements, he stayed at a student hostel in Geelong when he was on a residential part of the course. Mr Kanak said that because he was studying in Sydney, he maintained an address also in Sydney.
Mr Kanak said that he attended some classes but I am mindful that there was no other evidence before me regarding that, and none that he had completed any initial components of the course. There was also no documentary evidence before me with regard to the date on which Mr Kanak's application was rejected. He said that it must have occurred before the end of the semester.
I have noted that Mr Kanak agreed in cross-examination that he was receiving ABSTUDY payments in respect of courses both at Deakin University and the University of Western Sydney in Semester 1 of 1992. He indicated that he had attempted to obtain paid study leave from his employer, and when that was not approved, he sought to obtain ABSTUDY as a means of support. When questioned, Mr Kanak agreed he had not informed DEET of his change of status from full to part-time study. He agreed also that he had not checked whether he was receiving the correct payments in Semester 1 or 2 of 1992. He said that he thought there was liaison between the Aboriginal Enclave Unit, the University and DEET. I must say that I did not find that a convincing explanation.
I rejected Ms Keys' submission that the document "Enrolment Check Anomaly" at T7/A59 was inadequate and accepted the statements made therein with regard to Mr Kanak's enrolment status at University of Western Sydney in 1992.
There was no documentation before the Tribunal regarding notification to Mr Kanak of his non-acceptance for advanced standing as applied for. Mr Kanak's evidence before me was that he could not recall when he was notified that his application for advanced standing in his course had been rejected, but agreed it must have been before the end of Semester 1 in 1992. I did not accept his explanation that although he informed DEET, the non-receipt of the information was due to error by DEET.
I find pursuant to Guidelines C.2.6. of 15 November 1991 that Mr Kanak was eligible for ABSTUDY for amounts paid until his application was rejected. I noted Ms Keys' submissions with regard to the Guidelines and the statement at T8/A71 as follows:
"Student was paid from 1/1/94. Overpayment raised for $60, which was included in the first payment made on 13/1/94. Student was entitled to the next payment of $42.86 which was made on 2/3/94 (for period 28/2 to 5/3/94) – recovered $12.85 and student received $30.01."
I noted Ms Keys argued that in the alternative, I should consider that Mr Kanak had to undergo to interviews for entry to a Diploma in Education at the University of Western Sydney. I noted that pursuant to Guideline (1992) C.2.7 at page C-7, a Testing And Assessment Award may be approved if the student:
"… seeks to enrol in an approved tertiary course … and is required to travel away from his/her normal place of residence to attend a selection test or an interview to determine suitability for an acceptance into the course, where such a test/interview is a normal requirement for admission to the course ..."
Mr Kanak said that: "In my case there was a combination of interviews between the unit at University of Western Sydney and my employment, my employer." Mr Peek did not make submissions in this regard and I accepted that Mr Kanak was entitled to payment for travel to attend the interview pursuant to C.2.7 because he was required to undergo an interview process as part of his enrolment process.
The final repayment towards this debt of $4,436.73 was made on 19 December 1994. In applying section 289 of the Act, I find that:
Mr Kanak is eligible for that part of the ABSTUDY paid to him up to and including the end of the pay period which included the day on which he was advised that he was not accepted for the course.
The $72 recovered which was not an overpayment as conceded by Mr Peek must also be recredited to Mr Kanak.
I find further that whatever travel costs were incurred in attending the interview at the University of Western Sydney in connection with Mr Kanak's application for the Diploma in Education must be credited to him as these were recovered pursuant to administrative error (section 289 of the Act), in breach of the Guidelines (1992) C.2.7.
OVERPAYMENT NO. 2
DEETYA Reference 2A300568H
Deakin University 1992
applicant's argument
The Applicant alleged that Overpayment No.2 occurred as a result of a payment of ABSTUDY paid to Mr Kanak in respect of his application for assistance for a Bachelor of Arts (Education) Honours course at Deakin University in 1992. The claimed overpayment represented the difference between the amount of ABSTUDY which was paid to Mr Kanak on the basis of full-time study and his entitlement to ABSTUDY as a part-time student in Semester 2. The Applicant's documentation indicated that Mr Kanak received ABSTUDY of $8,921.50 (Applicant's submission of 19 November 1999), or $8,681.60 or $8,993.50 (Applicant's submissions of 15 July 1999), or as alleged earlier, $8,753.60 as assistance for this course. The Applicant alleged however, that Mr Kanak was entitled only to $4,941.20. In a later document dated 19 November 1999 entitled "Summary Schedule of Overpayments and Recovery Action", the Applicant stated that the amount of ABSTUDY to which Mr Kanak was entitled in connection with Overpayment No.2 was $5013.20. The total amount recovered in respect of the standard debt was $3,980.40.Therefore the overpayment amount Mr Peek alleged, was now $3,908.30. This calculation took into account the deduction of $72, for which the Applicant agreed Mr Kanak was eligible, and which should not have been recovered.
Mr Peek wrote in paragraph 6 of his Submissions of 15 May 2000 with regard to that:
"Rectification of this by the Tribunal could be achieved under various powers available to it, such as waiver under section 289 of the Student and Youth Assistance Act 1973 (the Act). The applicant suggests that as the error was one which went to the respondent's entitlement to ABSTUDY in the course of calculating the amount of this overpayment, the preferable course would be for the Tribunal to make a factual finding which adjusts the amount of this overpayment accordingly."
The Applicant alleged that the overpayment occurred because Mr Kanak did not advise ABSTUDY of the change to his enrolment status from full-time to part-time.
The final repayment towards this debt of $3,908.30 was made on 25 August 1995. As previously stated DEETYA conceded that this debt had been over-recovered and an amount of $72.10 was owing to the Applicant.
respondent's argumentMr Kanak told the Tribunal that in 1992 he enrolled in a Thesis in Arts Education through Deakin University in Victoria. He simultaneously made an application to the University of Western Sydney to study education, and asked for advanced standing, and credit for previous subjects.
Mr Kanak's explanation for being enrolled at both universities simultaneously was his apprehension that his employment would become redundant, and that he was advised by his supervisor that he should be making separate applications for these courses.
I noted that correspondence received by Mr Kanak from Ms Roslyn Field, A/g Director, Aboriginal Programs Branch, Department of Employment, Education and Training on 16 March 1992 referred to Mr Kanak's application for study assistance (Exhibit R2). Ms Field wrote to Mr Kanak in the following terms:
"Your existing application is very confusing and difficult to follow and does not really differentiate between the two courses. Two separate applications for each course will enable me, as the Delegate, to consider your application with full knowledge of all relevant details.
I draw your attention to the crucial sections of the attached guidelines – Studybank is not entitlement, and approval and the level of assistance is determined by the Delegate, who in this instance is myself. Also, applications for approval as a student need to be submitted prior to the beginning of each term, semester or academic year."Dr John Henry was Mr Kanak's supervisor for this thesis and worked with the Institute of Koori Education at Deakin University. On 12 May 1993 he wrote to Ms Sandra Houghton, Aboriginal Study, DEET regarding Mr Kanak (and another student) in the following terms (Exhibit R3):
"[Student and] … Dominic Kanak are currently enrolled in BA Ed (Hons) through the Institute of Koorie Education. This course requires them to complete a research thesis. I am their supervisor for their independent research projects. Their research work is community-based and they are required to visit me on-campus at Geelong at regular intervals."
A summary of debt collection activity by DEET at T10/A100 indicated that on 16 June 1992 Mr Kanak contacted the Department and the following note was made of the conversation:-
"16/06/92 – Call from client stating that attending University but having difficulties with deciding which credits would be allowed. Would forward letter from University stating he was full-time."
In oral evidence Mr Kanak stated that he relied on the Aboriginal Enclave to ensure that his status from full-time to part-time was effected. He stated that he discussed changing from part-time study to full-time study with the Aboriginal Enclave Unit in June 1992. To support this statement, Mr Kanak produced a memorandum (facsimile) dated 23 June 1992, signed by "Margaret", addressed to Robin McTaggart at Deakin University which stated:
"Dominic Kanak rang with a problem. He is enrolled as an on-campus BA(Ed)Hons – 4th Year (course 209) student but is off-campus … Somehow he has had his study leave mucked up because of this error. Could you do an enrolment variation for him asap and get it to Carmel, Off-campus, Student Centre."
The memorandum was marked with a note that stated: "John, I need to talk to you about this, Robin" with an additional note attached dated "Wed", addressed to John Henry with the following message: "please contact me about this ASAP, John M" (Exhibit R1).
On 2 July 1993 Mr John Maskell sent a facsimile to Mr Kanak care of St James Court as follows:
"To whom it may concern: Dominiq (sic) Kanak is enrolled at Deakin University in the BA (ed) Honours Program. In Semester One, 1992, he was a full-time enrolment; he requested this be changed to Part-Time in July 1992 – for Semester Two. Currently Dominiq (sic) is completing his Honours, enrolled as a part-time student for first and second semesters of 1993. Any queries regarding this status, please contact John Maskell or John Henry ..." (Exhibit R5)
A reference to Mr Kanak's contact with DEET regarding whether he was a part-time or full-time student also appeared at T11/A135. The following was noted on DEET activity enquiry/update records for 16 November 1995:
"Comment: client rang said that he was attending uni but was having difficulties with uni deciding what credits he would be allowed. Will forward letter from uni to us explaining that he was attending all the time."
Mr Kanak was charged under section 29B, Crimes Act 1903 for "untrue representation by omission" on 14 April 1993. In providing information for the criminal matter, Dr J Henry on 2 August 1993, sent a facsimile to Detective Moser of the Federal Police regarding Mr Kanak's enrolment status. He stated at T7/A58:
"Dominic Kanak enrolled in the Bachelor of Arts (Education) Honours degree course in 1992. This is a one year course of full time study at fourth year level. I am Dominic's supervisor for his studies in this course. At the end of 1992 Dominic has not completed the requirements of the course. In these situations the University has a procedure whereby the supervisor can enter an 'incomplete' result for a student who is judged likely to complete his or her study requirements during the next semester of the University's academic program. I informed Dominic at the end of 1992 that I would enter an 'incomplete' result for him with student administration. By this device he would have more time to complete his studies without incurring any penalties. I also advised him that it was not necessary to re-enrol in 1993 as his 1992 enrolment would carry over into the first semester of 1993 while he completed his course requirements.
Last week I discussed Dominic's situation with Mr Graeme Mitchel, Manager, Student Administration (Geelong Campus). He informed me that the procedure I had used in Dominic's situation was within the guidelines of University policy, but my implication to Dominic that he was still enrolled in 1993 was mistaken and incorrect in law. The 'incomplete' result which allows a student to complete studies entered into in one semester during the next semester is not recognised by the University or the Department of Employment and Education as equivalent to re-enrolling the student.
Thus Dominic was not enrolled in the Bachelor of Arts (Education) Honours course in 1993. In 1993 he was completing unfinished studies in his course resulting from his 1992 enrolment and he was under the impression, based on erroneous information from me, that he was still enrolled."The Commonwealth Director of Public Prosecutions did not proceed with the criminal charges against Mr Kanak. In the opinion of the Commonwealth Director of Public Prosecutions expressed on 10 January 1994, at T7/A56, the Director stated that there was no reasonable prospect of a conviction being secured in the case.
Ms Keys argued that it was Mr Kanak's intention to study full time in 1993, and not work in paid employment. She submitted that his intention was evidenced by his applications to be granted leave without pay and by the taking of sick leave (Exhibits A5 and A6).
I noted that Mr Kanak submitted an application for leave without pay from 20 July 1992 to 31 July 1992. The application was dated 14 July 1992 and was approved on 29 July 1992 (Exhibit A5). In that application he stated that the reasons for leave were for the purposes of study. A further application for leave without pay was submitted for the period from 8 August 1992 to the 18 December 1992 (Exhibit A6). That application was dated 31 August 1998 and was recommended for approval by his supervisor on 7 August 1992.
Ms Keys argued that Mr Kanak changed his student status from full-time to part-time pursuant to an application for study leave. His application for study leave had however not been approved.
I am mindful that no applications for study leave were before the Tribunal other than the leave applications before the Tribunal at Exhibit A5 and A6. (Transcript 21.9.1999, pp11&46)
Mr Kanak also told me that he had enrolled in Sydney at the Australian Film Television and Radio School in 1993. In relation to this he stated:
"…what I understood the DEET ABSTUDY was doing was that they were transferring like one payment to that course and that they were doing like a change in the name of the course so that the payments were I understood were not really considered as an over-payment but a transfer from one course to another." (Transcript 22.6.99, p28)
Ms Keys argued also in her submission dated 28 July 1999 at paragraph 2.2 that DEET "in deciding that there was a recoverable debt in respect of these payments, the Applicant failed to assess the Respondent's study workload against their own criteria." She cited the ABSTUDY Guidelines 1992 (dated 15 November 1991) at Guideline C.6.2 regarding tertiary award students which stated:
"A student applying for a Tertiary award will be deemed to be full-time or part-time on the basis of her/his study workload judged against the normal study workload requirement of the approved course (refer C.6.3).
A student who is enrolled in and studies at least three-quarters (75%) of the normal full-time study workload is regarded as a full-time student and may be eligible for benefits under an ABSTUDY Tertiary Full-Time Award (refer C.2.4)."Mr Kanak's 1993 Application for ABSTUDY (Tertiary – Continuing Students) was dated 22 November 1992 (Exhibit A3). In his application Mr Kanak stated that he would be studying "Education Research – Research Methodology" in Semester 1 and "Development Studies" in Semester 2 for a total of 25 hours per week. Mr Kanak also stated that he would be studying full-time for a full academic year in 1993. The application also stated that Mr Kanak would be living away from home at the Warreen Hostel.
In her submissions Ms Keys did not state what percentage of the full-time load Mr Kanak's was undertaking during 1992, and this issue was not addressed in evidence given by Mr Kanak.
Mr Kanak applied in May 1993 to study the Graduate Diploma of Development Studies ("the Graduate Diploma") in Semester 2 of that year. He explained that this course was related to the Bachelor of Arts Education and followed on from it. Mr Peek asked Mr Kanak if he was aware that there was no record of him having enrolled in the Graduate Diploma in 1993. Mr Kanak replied that he was enrolled and that the study involved writing a thesis in Semester 2 of 1992 and Semester 1 of 1993.
Mr Kanak told me in reply to Mr Peek's questioning, that if the thesis component of the Bachelor of Arts and the Graduate Diploma in Development Studies were considered to be different courses, then he agreed he had been getting payment for two courses in 1993. He indicated he had problems as ABSTUDY payments were stopped when he was charged with offences in 1993, but that he re-enrolled in the Graduate Diploma in Semester 2 1993.
the tribunal's decisionI was mindful that the SSAT accepted Mr Kanak's evidence that he received the ABSTUDY payments in good faith in relation to Overpayment No.2. It considered that the overpayment arose solely because of an administrative error made by the Commonwealth and stated at paragraph 39:
"… "the Commonwealth" was aware Mr Kanak had changed his enrolment to part time. Mr Kanak at the time was employed by Department of Employment, Education and Training. Department of Employment, Education and Training also administer ABSTUDY. The section in Department of Employment, Education and Training that processes study leave applications and the section in Department of Employment, Education and Training that administers ABSTUDY payments possibly do not have a liaison. However it is the Commonwealth's responsibility to ensure cross checks between programmes."
I did not agree with the SSAT that it was the Commonwealth's responsibility to ensure that there be cross-checking between the section of the relevant Department which administers ABSTUDY and the section of the relevant Department which processes study leave applications. I preferred the submissions of Mr Peek who submitted that Mr Kanak's study leave application was made "staff-in-confidence", and that it would therefore be considered a breach of Mr Kanak's privacy for such information to be disclosed to others, including the section of any relevant Department which administers the payment of benefits.
I considered whether Mr Kanak received the ABSTUDY payment in relation to Overpayment No.2 in good faith, applying the principles in Secretary, Department of Employment, Education, Training and Youth Affairs v Prince (1997) 50 ALD 186. I considered the state of mind of Mr Kanak in deciding whether he had received Overpayment No.2 in good faith and came to the conclusion that he had reason to know that he was not entitled to be receiving ABSTUDY payments if his leave had not been approved. He knew he was changing from full to part-time study, and chose to disregard paying attention to the level of his ABSTUDY. I accepted Mr Kanak's evidence that he discussed enrolment with the Aboriginal Enclave, but he appears not to have followed through. A letter of 16 March 1992 (Exhibit R2) to him, indicated to Mr Kanak that his application was "confusing and difficult to follow and does not really differentiate between the two courses". This at least should have alerted him with regard to the administrative arrangements regarding his enrolment, which admittedly were confusing. However, I took into account Mr Kanak's level of education and knowledge of the system, and felt he should have been aware enough to at least query what was happening. In oral evidence Mr Kanak told me that he thought that because he had enrolled at the Australian Film, Television and Radio School, payments could be transferred from one course to the other. He had no basis for simply accepting that, and should have made further inquiries.
I considered on the material before me the application of section 289 of the Act and was not convinced to the requisite standard that the waiver provisions pursuant to section 289 of the Act should apply in relation to Overpayment No.2. I noted the concession of the Applicant regarding the $72. which had been over-recovered and had to be recredited. Waiver of $72. in regard to Overpayment No.2 is appropriate.
OVERPAYMENT NO. 3
DEETYA Reference 3A300098B
Deakin University 1993
applicant's argument
The Applicant alleged that Overpayment No.3 occurred as the result of a payment of ABSTUDY to Mr Kanak in respect of his application for assistance for continuing a Bachelor of Arts (Education) Honours course at Deakin University in 1993. The overpayment represented all ABSTUDY paid to Mr Kanak, as records (T8/A69) demonstrated he had never been enrolled in the course. The overpayment amount alleged was $2,576.35.
This alleged overpayment of $2,576.35 consisted of payments from 7 January 1993 to 31 March 1993, totalling $2,261.35 and an incidentals allowance of $315.00.
Additional information provided by DEETYA on 15 July 1999 to the Tribunal stated that the initial overpayment was raised on 3 April 1993 and the total overpayment initially raised was $2,576.35. DEETYA stated that interest and late payment charges were applied to the debt but had since been remitted in full.
The final repayment towards this debt was made on 25 August 1995.
respondent's argument
Mr Kanak gave evidence to the Tribunal that he did not complete his thesis during 1992, and continued his study into 1993.
As previously noted, Mr Kanak stated that he relied on the facsimile sent by Dr J Henry to Detective Moser of the Federal Police on 2 August 1993 to explain in part his enrolment status (T7/A58).
In her submission of 28 July 1999 at paragraph 3.2, Ms Keys argued that even if Mr Kanak had not been formally enrolled, the eligibility criteria for Tertiary Full-Time Award under ABSTUDY 1993 Guideline C.4.1 (dated 30 October 1992):
"would entitle the Respondent to the benefits listed in Guideline C.4.3 such that there has been no overpayment – with the exception of possible dual payment of incidental allowance under 3A300750D (however, the actual amount/frequency of payment of incidental allowance is unknown)."
I noted that the ABSTUDY Guidelines 1993 at C.4.1 discussed eligibility in the following terms:
"To be eligible for ABSTUDY assistance a student must be studying or proposing to study:
·at an approved education institution; and
·in an approved course.
For all awards other than Tertiary Part-Time Awards, and Testing and Assessment Awards, the approved course must also be taken on a full-time basis (refer C.6).
…
A student's enrolment in the approved course must be confirmed at least once per semester" [my emphasis]"
ABSTUDY Guideline 1993 C.4.3 referred to approved courses not benefits.
Ms Keys stated at paragraph 3.3 of her submission that the Applicant failed to take into account ABSTUDY Guideline C.6.5.2 of 1993 (dated 30 October 1992) which was in the following terms:
"An ABSTUDY-Tertiary student is eligible for assistance providing he/she can complete the approved course of study within a "reasonable time".
A "reasonable time" is defined as:
·(for courses of two years duration or less) twice the normal duration nominated by the education institution for completion of the course; and
·(for courses of more than two years) the normal duration nominated by the education institution for completion of the course plus an additional two years.
The delegate may approve the extension of an award for one year beyond the "reasonable time" duration specified above if:
·the student's progress has been impeded by physical disability or other circumstances beyond her/his control; and
·the education institution recommends continuation of ABSTUDY assistance and indicates that the student is expected to complete the course in that year."
the tribunal's decision
I considered Mr Kanak's entitlement to ABSTUDY in connection with Overpayment No.3.
I took into account the fact that Mr Kanak relied on the facsimile by Dr J Henry (T7/A58) in relation his re-enrolment in 1993, in that he thought he was advised, and relied on that advice to continue with his thesis without re-enrolling. I was however not satisfied that a well educated person who had previously undergone tertiary study should have relied on such information. There was no evidence to suggest Mr Kanak checked with the University's administration. The test is an objective one. Mr Kanak was not enrolled in the Bachelor of Arts (Education) Honours course at Deakin University in 1993 (T8/A69).
The error occurred due to a combination of misinformation by Mr Kanak's supervisor to him and his reliance on it. I concurred with the SSAT when it stated at paragraph 40 (T2/A14):
"… although administrative error occurred, that error was the University's. Universities are not the Commonwealth …"
The final repayment of the amount of $2,576.35 was made on 25 August 1995. As I have found that there was no administrative error pursuant to section 289 of the Act, I did not find grounds to waive the overpayment in relation to Overpayment No.3.
OVERPAYMENT NO. 4
DEETYA Reference 3A300750D
Deakin University 1993
applicant's argument
The Applicant initially alleged that Overpayment No.4 was a dual payment resulting from Mr Kanak applying for ABSTUDY from the Melbourne office of DEET in respect of the Bachelor of Arts (Education) Honours course for which ABSTUDY was already being paid in relation to Overpayment No.3. The Overpayment represented all ABSTUDY paid to Mr Kanak in this regard, as it was alleged he was never enrolled in the course and had been receiving payment from the Sydney office. The overpayment amount alleged was $1,429.28.
Additional information provided by way of written submissions from DEETYA dated 15 July 1999, stated that the initial overpayment was raised on 8 September 1993. The total overpayment initially raised was $334.28. or $368.15 (Transcript 23.6.99, p108). However, after a number of adjustments the total debt recovered was $1,429.28.
This alleged overpayment of $1,429.28 consisted of three payments of living allowance each of $120. which were received by Mr Kanak on 4 August 1993, 18 August 1993 and 1 September 1993, an incidentals allowance of $315. shown as $321. in some documents, and a pensioner education supplement of $754.28 (T8/A70).
The final repayment towards this debt which amounted to $1429.26 (-$0.02 difference) was made on 16 August 1995. The Applicant conceded that $867.95 of Overpayment No.4 was over-recovered. (Applicant's Written Submissions 15 May 2000). The appropriate action will have to be taken regarding the amount over-recovered.
respondent's argument
I was reminded that Ms Keys in her opening statements at the hearing on 22 June 1999 said:
Ms Keys:"The 1993 ABSTUDY payment for Deakin University which is debt number 4, is the Department saying that Mr Kanak received dual payments for that year. Mr Kanak has no quarrel with that aspect of the debt that's owed."
SM Ettinger : "So No 4 is conceded."
Ms Keys:"Yes. In relation to the last mentioned debt…"
SM Ettinger: "That's the University of Western Sydney?"
Miss Keys: "Yes. Mr Kanak concedes, or accepts, that there is a debt in this particular case but it's actually just the amount of the debt that might be an issue in that matter, it's not that there is a debt, but what amount was owed."
(Transcript 22.6.99, pp15-16)
Ms Keys, in her submission of 28 July 1999 at paragraph 4.1 relied on arguments made also in relation to Overpayment No.3. At paragraph 3.2 of the same document, Ms Keys submitted on behalf of Mr Kanak as follows:
"The Respondent says that even if he was not formally enrolled, the eligibility criteria for Tertiary Full-Time Award (Guideline C.4.1, 30 October 1992) would entitle the Respondent to the benefits listed in Guideline C.4.3 such that there has been no overpayment – with the exception of possible dual payment of incidental allowance under 3A300750D (however, the actual amount/frequency of payment of incidental allowance is unknown).
Further, in deciding that there was a recoverable debt in respect of these payments, the Applicant failed to take account of Guideline C.6.5.2 (at page C-42):
'An ABSTUDY Tertiary student is eligible for assistance providing he/she can complete the approved course of study within a 'reasonable time.'
A 'reasonable time' is defined as:· (for courses of two years duration or less) twice the normal duration nominated by the education institution for completion of the course;
and
· (for courses of more than two years) the normal duration nominated by the education institution for completion of the course plus an additional two years."
At the resumed hearing on 21 September 1999 (Transcript 21.9.99, p16), Ms Keys said:
"Mr Kanak before the SSAT had acknowledged that his application for advanced standing was rejected … That was before the SSAT and it is not necessarily his position here. Before the SSAT we did not have any guidelines in relation to ABSTUDY at all and I think I deal with that issue in some submissions concerning whether the entitlement of recipients of ABSTUDY to that allowance if their applications for enrolment are rejected and I think that was something that we looked at in the guidelines before …"
At the resumed hearing on 21 September 1999, matters relating to Overpayment No.4 were clarified. Mr Peek conceded that Mr Kanak had made two separate applications, one for Semester 1 study on 22 December 1992, and one for Semester 2, on 10 May 1993. Mr Peek was in agreement that these appeared to be consecutive. However, he submitted that regardless of the periods, the amounts paid were in respect of the same course and therefore dual payments.
Ms Keys agreed that taking into account calculations made by the Applicant, there was "possibly" a dual payment of incidental allowance only in relation to that period of $315 (Tp.A69/A70).
In evidence to the Tribunal, Mr Kanak stated that in 1993 he enrolled in a course at the Australian Film and Television School and said:
"I understood it was like a dual payment but I'd also enrolled in 1993 for another course in Sydney at the Australian Film and Television and Radio School and what I understood DEET ABSTUDY was doing was that that they were transferring like one payment to that course and that they were doing like a change in the name of the course so that the payments were … I understood not really considered as an over-payment but a transfer from one course to another."
I noted that the final repayment towards this debt of $1,429.28 was made on 16 August 1995.
the tribunal's decisionI noted Ms Keys' agreement on behalf of Mr Kanak that the incidentals allowance in relation to Overpayment No.4 was an overpayment.
I considered whether Mr Kanak had received the payments in regard to Overpayment No.4 in good faith. In doing so I relied on Prince (supra) noting that Finn J stated:
"… I consider the burden of the formula in the s 289 setting to be obvious enough. Its concern is with the state of mind of a person concerning his or her receipt of the payment: if that person knows or has reason to know that he or she is not entitled to a payment received – ie is not entitled to use the moneys received as his or her own – that person does not receive the payment in good faith. Absent such knowledge or reason to know, the receipt would be in good faith."
I took into account the fact Mr Kanak is very intelligent and educated as well as having extensive experience working at a quite senior level in the Commonwealth. I accepted the evidence that Mr Kanak's payments were consequential, that is for two time periods which followed each other in 1993. However given my views as stated above, I did not accept Mr Kanak's evidence that he thought a payment for one course would be transferred to another course. The evidence was that he was not enrolled in the course for which he claimed ABSTUDY in relation to what became Overpayment No.4. I noted Ms Keys' submissions regarding the Guidelines but did not find they could be applied if Mr Kanak was not enrolled at all as demonstrated to my satisfaction. I noted Mr Kanak's agreement that the incidentals allowance was an overpayment.
I considered the provisions of section 289 of the Act and found no grounds to waive the recovery in relation to Overpayment No.4. I agreed with the SSAT which stated at paragraph 41 (T2):
"Mr Kanak was only doing one course in 1993. Given that he was a relatively senior officer in Department of Employment, Education and Training, it is unlikely in the tribunal's view that Mr Kanak would think that he was entitled to double payments."
OVERPAYMENT NO.5
DEETYA Reference 4A260101L
University of Western Sydney 1994
applicant's argument
The Applicant alleged that Overpayment No.5 occurred as the result of a payment of ABSTUDY to Mr Kanak in respect of his application for assistance for a Master of Applied Science (Social Ecology) course at the University of Western Sydney in 1994, and that the overpayment represented all ABSTUDY paid to Mr Kanak as it was alleged he had never been accepted into the course. Mr Peek's document of 19 November 1999 stated that the amount of overpayment to Mr Kanak in respect of Overpayment No.5 was originally $1093.26 and that the amount to which Mr Kanak was entitled was $755.11. The overpayment recovered was $374.13. However in the Applicant's Written Submissions of 15 May 2000, Mr Peek stated that the agreed amount of overpayment for Overpayment No.5 was $368.15.
According to DEETYA, the fares component ($682.25) originally raised as an overpayment was recredited from the debt in late 1995. I noted that in the Applicant's Written Submissions of 15 May 2000 the amount was shown as $785.41. This fares component related to Mr Kanak's travel to Western Australia to a sacred site when he accompanied Prince Charles on a visit, and was recommended by the University as beneficial to Mr Kanak with regard to his course.
The final repayment towards this debt was made on 14 May 1997. In its document of 15 May 1999, the Applicant qualified this by stating also:
"The debt had been repaid in full previously on 19 December 1995, however, due to an overpayment being raised in respect of the applicant's 1995 application all monies withheld were refunded to the application and other recovery action was commenced."
Therefore for purposes of this matter, I was satisfied that the debt had been recovered before 1 January 1996, from when section 290C of the Act has applied, so I have had to consider waiver pursuant to section 289 of the Act only .
respondent's argument
I was mindful that Ms Keys stated the following in opening remarks on 22 June 1999 in regard to the issue in dispute regarding Overpayment No.5:
SM Ettinger: So all you are really contending, that all of the debts are in issue apart from No 4, and in No 5 you accept there is a debt and the amount may be in issue?"
Ms Keys: Yes."
(Transcript 22.6.99, p17)I have noted the exchange with Ms Keys at the hearing as reproduced in the paragraph above, noting that she there addressed Overpayment No.4 which has been dealt with in a section above. In the following paragraphs, I deal only with the issue of Overpayment No.5.
In relation to Overpayment No.5, Mr Kanak told the Tribunal that he applied to the University of Western Sydney to study Social Ecology in 1994 (Transcript 22.6.99, p30). He said that he understood he had been accepted, and understood he was enrolled, because travel assistance in connection with the course had been granted. The grant had been to travel with Prince Charles on a visit to a sacred site in Western Australia. Mr Kanak said that he had been part of the media entourage for Prince Charles.
I noted that on 31 January 1994, Mr Peter Meiser, Coordinator of Research Degrees Program, School of Ecology, UWS wrote to Ms Eileen Hinton of ABSTUDY in Blacktown regarding Mr Kanak's travel funding request (Exhibit A7). He stated:
"I am writing in support of Dominic's request for travel and accommodation funds to allow him to accompany the Prince Charles visit to Karratha in Western Australia. The information Dominic would gain through this visit would form an important part of his proposed research towards an MSc (Hons) degree in Social Ecology at our School.
At present his application for entry is being processed and has provisional approval. My expectation is that formal entry into the program will be granted at a meeting of the UWS Hawkesbury Postgraduate Studies Committee meeting on February 25th."Notwithstanding, on 1 March 1994 (T8/A71) the University of Western Sydney, Hawkesbury posted a letter to Mr Kanak informing him that he was unsuccessful in his application for admission to the course. At T8/A71 the following was recorded by DEET in regard to Mr Kanak's application:
"As per 1994 ABSTUDY PGM 7-24 – 'Student entitled to receive living allowance until the end of pay period which includes the day on which the student was advised that s/he was not accepted'. Therefore, student entitled to payment from commencement of course on the 28/2 to the end of the pay period 5/3/94.
Student was paid from 1/1/94. Overpayment raised for $60, which was included in the first payment made on 13/1/94. Student was entitled to the next payment of $42.86 which was made on 2/3/94 (for period 28/2 to 5/3/94) – recovered $12-85 and student received $30-01.
As per 1994 ABSTUDY PGM 7-52 – 'If a student does not commence study in an approved course, any incidentals allowance paid is recoverable'. Because the student did not commence study in the course, the incidentals allowance of $321 is an overpayment'."Mr Kanak said that it was only after the trip that he heard he had not been accepted for the course.
Mr Kanak told me that he was still working for DEET at June 1994 because his redundancy had not yet been settled. He said that there had been two court cases of which one was the criminal proceedings referred to earlier in these reasons. His voluntary redundancy had been finalised during 1995 he said.
the tribunal's decisionI was mindful that Ms Keys submitted at the initial hearing on 22 June 1999 that Overpayment No.5 was conceded, and there was thus no need for me to further consider it.
However, in her written submissions of 28 July 1999, the position had changed. Ms Keys cited document T8/71, and its references to ABSTUDY Guidelines as quoted in the section under the title 'Applicant's Submissions' (Overpayment No.5) above. She referred to the letter of the Co-ordinator of the School of Ecology at University of Western Sydney dated 31 January 1994 (Exhibit A7), written in support of Mr Kanak's travel grant: "… establish the Respondent's entitlement to fares, but it also establishes that the Respondent had 'commenced study' in the course and consequently the incidentals allowance was not recoverable by virtue of 1994 ABSTUDY PGM 7-52." Ms Keys also submitted that the amount received by Mr Kanak was $978.96 and not $1,093.26 as submitted by the Applicant.
I found from the evidence (letter of the University to Mr Kanak of 1 March 1994, T8/A71), that Mr Kanak had not been enrolled in the Master of Applied Science (Social Ecology) course at the University of Western Sydney in 1994. I therefore found that the overpayment of $368.15 had been correctly raised. For purposes of this matter, the final repayment towards this debt was made on 19 December 1995.
Mr Peek in his Statement of Facts and Contentions under the heading "Overpayment 5: (DETYA reference 4A260101L", referred to Paragraph 16 of the SSAT decision which I noted referred to the travel component of $682.25. It then referred to an incidentals component of $321, and stated that "the total overpayment for the 1994 University of Western Sydney debt is $1050.40." Ms Keys submitted that the total amount received by Mr Kanak was $978.96 and not $1,093.26 as submitted by the Applicant. This was one of many examples of the difficulties encountered in coming to the correct decision in this case.
I found that with regard to Overpayment No.5, the travel allowance had been recredited. This consisted of either $682.25, or $785.41 (Applicant's Written Submissions of 15 May 2000). I considered from the numbers of documents before me that $785.41 was likely to be the more correct figure.
As Mr Kanak had not been enrolled at the University of Western Sydney at the relevant period, he was not entitled to ABSTUDY for Semester I 1994 for the period 28 February 1994 until 5 March 1994 for which he had been paid. There was therefore no basis for waiver pursuant to section 289 of the Act.
I noted also the submissions of both parties with regard to notices pursuant to section 42 of the Act. I was satisfied from the evidence including a document at T7/A48, which was a record of a meeting with regard to these notices and their purpose:
"Mr Sommerton stated that one of the notices would enable a lump sum recovery and is to be enforced where monies become available to Mr Kanak in relation to the period 26.4.93 to 28.3.94. This notice is also to be enforced should Mr Kanak become entitled to receive payment of final monies – that is in the event of him permanently ceasing duty."
I was mindful that notices pursuant to section 42 of the Act had been served on Mr Kanak on 13 April 1994 and 11 July 1995 as discussed earlier in these Reasons for Decision. I was mindful also that other recoveries of overpayment, some in excess of what has now been held to have been legitimate payments to Mr Kanak were made at various times, and that some have been recredited as discussed above.
OTHER DEDUCTIONS FROM MR KANAK'S BENEFITSIn evidence Mr Kanak stated that he received ABSTUDY for his daughter Dominique's schooling and DEETYA had made deductions with regard to those benefits. He also stated that after his redundancy other deductions were made from benefits he was receiving from Centrelink. (Transcript 22.6.99, p32-33)
I noted that Exhibit R6 showed that Mr Kanak received $520. for Dominique for the school year 1995.
Mr Peek assured me that to the best of his knowledge all withholdings made with regard to Mr Kanak's daughter Dominique had been recredited. Ms Keys did not make further submissions on Exhibit R6 or on this point. (Transcript 21.9.99, p27).
CONCLUSIONSIn conclusion I found as follows based on the evidence, case law, legislation and the ABSTUDY Guidelines in relation to the five overpayments alleged.
I noted that all the overpayments had been recovered in full, before 1 January 1996. I therefore considered waiver as appropriate pursuant to section 289 of the Act in relation to the overpayments discussed above, and did not have to consider section 290C of the Act.
The task of actually calculating what Mr Kanak received, to what payments he was entitled, what overpayments had been made, and what had been recovered and over-recovered proved difficult for the parties and for me, as evidenced by the number of hearings and written submissions made. It was complicated by the fact that withholdings have been made from ABSTUDY payments paid after the period 1992-1994 which related to the five alleged overpayments (Applicant's Schedule of Calculations and Recovery Action under cover of a letter of Mr Peek of 15 July 1999).
DECISIONThe Tribunal varies the decision of the SSAT of 29 February 1996 which varied the decision of an authorised review officer of the Secretary, of the then Department of Employment, Education and Training and Youth Affairs of 29 August 1995. The Tribunal finds as follows:
Overpayment No.1
I find that Mr Kanak is eligible for that part of the ABSTUDY paid to him up to and including the end of the pay period which included the day on which he was advised that he was not accepted for the course.
The $72. Over-recovered which was not an overpayment as conceded by Mr Peek must also be recredited to Mr Kanak.
I find further that whatever travel costs were incurred in attending the interview at the University of Western Sydney in connection with Mr Kanak's application for the Diploma in Education must be credited to him as these were recovered pursuant to administrative error (section 289 of the Act), in breach of the Guidelines (1992) C.2.7.
Overpayment No.2
I find that waiver pursuant to section 289 of the Act is not appropriate in relation to Overpayment No.2. other than in connection with the $72. (as conceded by the Applicant), which had been over-recovered and had to be recredited.
Overpayment No.3
I did not find grounds pursuant to section 289 of the Act to waive the overpayment in relation to Overpayment No.3.
Overpayment No.4
I find no waiver appropriate with regard to Overpayment No.4, noting however t that the Applicant has conceded that $867.95 of Overpayment No.4 was over-recovered (Applicant's Written Submissions 15 May 2000). Appropriate action must therefore be taken in that regard.
Overpayment No.5
I find that as Mr Kanak had not been enrolled at the University of Western Sydney at the relevant period, he was not entitled to ABSTUDY for Semester I 1994 for the period 28 February 1994 until 5 March 1994 for which he had been paid. There was therefore no basis for waiver pursuant to section 289 of the Act.
I certify that the preceding 143 paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger
Signed: .....................................................................................
AssociateDates of Hearing 22 & 23 June 1999; 21 September 1999
Final written submissions 11 August 2000
Date of Decision 22 December 2000
Counsel for the Applicant N/A
Solicitor for Applicant Mr G Peek
Counsel for the Respondent Ms J Keys
Solicitor for the Respondent N/A
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