KELLER And SECRETARY TO THEDEPARTMENT OF FAMILY ANDCOMMUNITY SERVICES

[2002] AATA 468

DECISION AND REASONS FOR DECISION [2002] AATA 468

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/1410
GENERAL ADMINISTRATIVE DIVISION
  Re:         LECH KELLER
  Applicant
  And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY AND
  COMMUNITY SERVICES
  Respondent

DECISION

Tribunal:       M.J. Carstairs, Member
Date:             17 June 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) M.J. Carstairs
  Member
SOCIAL SECURITY - disability support pension - income from scholarship - debt to Commonwealth - writing off of debt - waiver of debt - special circumstances
Social Security Act 1991 ss1236, 1237AAD
Re Beadle and Director-General of Social Security (1984) 6 ALD 1

REASONS FOR DECISION

17 June 2002  M.J.Carstairs, Member

1. This is an application by Lech Keller (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 9 October 2001. The SSAT affirmed a decision of an authorised review officer, who had affirmed the decision of a Centrelink delegate of the Secretary to the Department of Family and Community Services (the respondent) dated 17 August 2001.  The original decision by Centrelink dated 19 June 2001 was to recover a debt of $1,730.83, being the amount received by the applicant as disability support pension (DSP) during the period 14 February 2001 to 5 June 2001.  

2. At the hearing of this matter on 16 April 2002 the applicant represented himself and Mr D. Perdon, advocate with Centrelink, represented the respondent. The evidence before the Tribunal comprised oral evidence and the documents lodged under s37 of the Administrative Appeals Tribunal Act1975 together with one exhibit (Exhibit A1) tendered by the applicant and five exhibits (Exhibits R1-R5) tendered by the respondent. After the hearing, additional written submissions were filed by the applicant (8 May 2002) and by the respondent (15 May 2002).
   BACKGROUND

3. The applicant was born on 1 December 1949.  He was receiving DSP and on 29 January 2001 Centrelink notified him that he was required to provide details of any increase in income.  Under the terms of a scholarship awarded by The University of Newcastle commencing on 12 February 2001 the applicant received a fortnightly payment of $661.84.  On 29 May 2001 he was requested to provide details of payments received, and on 19 June 2001 Centrelink decided that he had been paid $1,844.51 to which he was not entitled, during the period 14 February 2001 to 5 June 2001.  On review this amount was reduced to $1,730.83. 

4. On 23 August 2001 the applicant lodged an appeal with the SSAT, and on 2 November 2001 he sought review of the SSAT decision by the Tribunal. 
   EVIDENCE

5. The applicant, through a Polish interpreter, told the Tribunal that The University of Newcastle awarded him an Australian Postgraduate Award for 2001 to support his postgraduate research degree studies in the Department of Economics.  The scholarship involved research into migrants' rights in Australia, and was awarded for two years for a Master's program and three years for a Doctor of Philosophy program.  Under the terms of the scholarship the applicant was entitled to a living allowance of $17,267 per year tax-free.  The applicant stated that he moved to Newcastle to take up the scholarship and incurred significant costs such as rent of a flat.  He travelled to Europe for conferences and research at his own expense, and said that funds received from the scholarship were not treated as income by the Australian Tax Office. 

6. The applicant said that there was little interest in his research and he was forced to abandon his studies, causing him to lose his scholarship on 2 July 2001 and forfeit the bond on his flat. 

7. The applicant acknowledged that a debt to the Commonwealth had arisen, and said that he was required to borrow substantial amounts of money to support his studies at The University of Newcastle and had accumulated a significant personal debt.  Therefore his real income did not increase as a result of receiving the living allowance under the scholarship.  He explained that the attempts by Centrelink to recover the debt had caused an aggravation of his medical condition, and he had insufficient funds to pay for necessary treatment.  The applicant stated that the actions by Centrelink had caused him to lose the scholarship and the opportunity to study, work and carry out important research.  He said that consequently he was unable to repay any debt to the Commonwealth.
   CONSIDERATION OF THE ISSUES

8. Section 1236 of the Social Security 1991 (the Act) provides in relation to the writing off of a debt:

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

Section 1237AAD of the Act provides in relation to the waiver of a debt:

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.

1. The applicant submitted that he had no capacity to repay the debt because of the necessity to borrow large sums of money to support his studies at The University of Newcastle, and the consequences of efforts by the Commonwealth to recover the debt.  He suggested that in view of the amount of the debt it would not be cost effective for the Commonwealth to take action to recover the debt.

2. The applicant submitted further that there were special circumstances that justified waiver of the debt.  He referred to his evidence concerning his financial hardship, accumulated debts, the loss of his scholarship and the consequent impact on his health and financial position, the amount of the debt, the actions by Centrelink and the loss of his ability to work and study. 

3. Mr Perdon submitted that recovery of the debt should not be written off in whole or in part because the applicant had an ongoing social security entitlement from which deductions could be made without causing him undue financial hardship. With respect to the question of waiver of the debt, Mr Perdon stated that there were no special circumstances that would justify waiver of the debt in whole or in part under s1237AAD of the Act.

4. In reaching its decision the Tribunal takes into account the written material, oral evidence and the submissions made at the hearing. After hearing oral evidence from the applicant the Tribunal can understand that he felt frustrated and disappointed at the perceived lack of interest in his research and the cessation of his scholarship in July 2001. The Tribunal notes the evidence given by the applicant concerning his financial position at the time of his move to Newcastle and after his scholarship payments ended. However, after taking all relevant matters into account including the amount of the debt and the ongoing entitlement of the applicant to government benefits, the Tribunal agrees with Mr Perdon that recovery of the debt should not be written off in whole or in part under s1236 of the Act.

5. In relation to whether special circumstances exist, the Tribunal notes the decision of Re Beadle and Director-General of Social Security (1984) 6 ALD 1 in which the Tribunal stated at page 4:

   …
   But it is not helpful to focus too closely on each particular circumstance of the applicant and ask whether it is special. Of itself it is unlikely to be special for there would be many in a similar situation. The question is whether, when the relevant circumstances of the applicant are looked at in their entirety, they may fairly be described as unusual, uncommon or exceptional so as to warrant payment of the allowance earlier than the date from which it would ordinarily be paid.

6. The Tribunal accepts that the applicant feels aggrieved by the handling of this matter by Centrelink, and that he borrowed sums of money to undertake his research and move to Newcastle.  However, there is no evidence that the applicant has been denied access to essential medical care.  Similarly, there is no evidence that the actions of Centrelink or any other government agency have prevented him from working or carrying out research or have discriminated against him because of his disability.

7. For these reasons the Tribunal finds that when the circumstances are viewed in their entirety they are not unusual, uncommon or exceptional and do not constitute special circumstances that make it desirable to waive the debt under s12377AAD of the Act.  Therefore the Tribunal is satisfied that the right to recover all or part of the debt should be not waived.   
   DECISION

8. The Tribunal affirms the decision under review.

   I certify that the sixteen [16] preceding paragraphs are a true copy of the reasons for the decision of:
   M.J.Carstairs, Member

   (sgd)       Olympia Sarrinikolaou
                 Clerk

   Date of hearing:  16 April 2002
   Date of decision:  17 June 2002
   Advocate for applicant:               Nil - self-represented

   Advocate for respondent:            Mr D. Perdon, Centrelink