Kristina Anne Printzios and Secretary, Department of Employment

[2015] AATA 153

[2015] AATA 153 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/4559
Re	Kristina Anne Printzios
APPLICANT
And	Secretary, Department of Employment
RESPONDENT

DECISION

Tribunal	The Hon. Brian Tamberlin QC, Deputy President
Date	17 March 2015
Place	Sydney

The decision under review is affirmed.

................................[sgd]........................................

The Hon. Brian Tamberlin QC, Deputy President

CATCHWORDS

SOCIAL SECURITY - overpayment of youth allowance - whether special circumstances - whether applicant knowingly made a false representation - financial hardship - decision under review affirmed

LEGISLATION

Social Security Act 1991 ss541, 541A, 541B, 1223, 1237A, 1237AAD

CASES

Groth and Secretary, Department of Social Security [1995] FCA 1708

REASONS FOR DECISION

The Hon. Brian Tamberlin QC, Deputy President

17 March 2015

1. The Applicant seeks the review of a decision of the Social Security Appeals Tribunal (SSAT) dated 19 March 2014. The SSAT affirmed the decision of a Centrelink Authorised Review Officer (ARO) to raise and recover a debt for the overpayment of Youth Allowance of $9,179.84 for the period 23 April 2010 to 14 March 2011.

   BACKGROUND

2. On 20 April 2010 the Applicant notified Centrelink that she was studying full time at the Open Training and Education Network (OTEN) and was undertaking a Certificate III in Business Administration.  Centrelink commenced paying the Applicant Youth Allowance effective from 17 April 2010.

3. On 3 January 2012 Centrelink was notified by OTEN that they had no record of the Applicant being enrolled at the institution in the 2010 study year.  To be entitled to the payment of Youth Allowance as a student, Centrelink requires a study workload of 216 curriculum hours to be completed in each semester.  The Applicant was notified by Centrelink that she had been overpaid Youth Allowance during the period of 17 April 2010 to 18 March 2011.  A debt was raised against her for the amount of $9,474.41 on the basis that she had not been a full time student during the period and was therefore not entitled to payments of Youth Allowance.

4. The Applicant requested a review of the original decision but it was affirmed by the ARO on 30 December 2013. However it should be noted that the ARO decided that the appropriate period was 23 April 2010 to 15 March 2011, as opposed to the original period which was 17 April 2010 to 18 March 2011. Accordingly, the ARO recalculated the debt to be $9,179.84, a reduced amount from the original figure of $9,474.41. Following the decision of the ARO, a further application for review was made to the SSAT on 6 January 2014, who again affirmed the decision on 19 March 2014 to raise and recover the debt.  The Applicant has appealed to this Tribunal for review of the decision of the SSAT.

   LEGISLATION

5. The relevant Act is the Social Security Act 1991 (the Act). 

6. Section 541(1) the Act provides guidance in relation to satisfying the activity test for payment of the Youth Allowance.  This test requires a person to satisfy the Secretary that throughout the period the person is undertaking full time study.  Section 541A of the Act provides for circumstances when a person cannot be taken to satisfy the activity test. 

7. Under s 541B(1) full time study requires a person to be enrolled in a course of education at an educational institution.  Section 1223(1) of the Act provides that if a person obtains the benefit of a payment in circumstances where the person was not entitled for any reason to obtain that benefit, the amount of the payment is a debt due to the Commonwealth. The debt arises when the person obtains the benefit of the payment.

8. There is provision within the legislation to write-off a debt, if the debt is irrecoverable by law or, if the debtor has no capacity to repay the debt or, if the debtor’s whereabouts are unknown or, if it is not cost effective for the Commonwealth to recover the debt.

9. There is also provision for the waiver of debts in s 1237A of the Act, which provides that debts caused solely by administrative error on behalf of the Commonwealth can be waived.  Under this provision the Secretary must waive the right to recover the proportion of the debt that is solely attributable to an administrative error made by the Commonwealth if the debtor received in good faith the payment that gave rise to that proportion of the debt.  The “sole cause” requirement 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.

10. Under s 1237AAD the Act provides for waivers of debts due to special circumstances.  This provision requires the Secretary to be satisfied that the debt did not result wholly or partly from the debtor or another person “knowingly” making a false statement or false representation, or failing to comply with a provision of the Act, and that there are special circumstances other than financial hardship alone that make it desirable to waive the debt, and if it is more appropriate to waive the debt than to write-off the debt or part of the debt.

    THE ISSUES

11. The issues are as follows:

    (a)whether the Applicant has incurred a debt for overpayment;

    (b)whether the Applicant owes a debt to the Commonwealth; and

    (c)whether the debt is recoverable or should be recovered.

12. In this matter the Applicant has not contended that there is no debt, therefore the amount of the debt is not an issue in this application.

13. The evidence in the s 37 documents shows that the Applicant received the sum of $9,179.84 in Youth Allowance for the relevant period and that her payment of Youth Allowance was granted on the basis that she was studying full time, when in fact she was not.

14. Numerous notices were sent to the Applicant in 2010 and 2011 which advised her of the calculation of her rate of payment and requested her to advise if her circumstances had changed and, in particular, whether she had started or stopped being a full time or part time student.  There is no evidence of any communication to Centrelink from the Applicant during the debt period to advise that she was no longer studying full time. 

15. Accordingly, I am satisfied that the Applicant was not entitled to Youth Allowance during the period 23 April 2010 to 14 March 2011.

16. The Applicant’s father, who appeared for her before this Tribunal, contended that the Secretary must waive the right to recover the debt because it is solely attributable to an administrative error by the Commonwealth.  The Applicant contends that Centrelink was, or should have been, on notice that the Applicant was not complying with the requirement for full time study, yet it took no action to cease payments or recover payments from her at an earlier stage.  For example, Mr Printzios referred to a record of an interview on 24 September 2010 which in part states:

    “SW also discussed A/n’s study details A/n said she’s still studying via correspondence full time.  A/n reported that she hasn’t studied in the last 4 days and has not (in) the past two weeks.  SW was to consult with the CSC in regard to this due to the activity that had been sent by the CC but A/n had to leave due to a DR’s appt.”

    “A/n” refers to the Applicant.

17. The Applicant contends that this record of interview indicates that there was notice to Centrelink of non-compliance at that point, (five months after the payments started) that she was not in full time study because she had not studied in the last four days and not in the past two weeks and yet failed to investigate whether there was compliance. 

18. There is a note on a Social Work Report dated 4 June 2010 which records that the customer (the Applicant) advised that she has good independent living skills, good health outside of having asthma which prevents her from being around smokers, she does not have her own transport so relies on public transport, and that she is currently doing a course through OTEN-correspondence network.  The Applicant stated according to this record that she did not have any current legal issues, no mental health issues, no substance abuse issues and no risk of harm.  The Applicant is recorded as having said that she has good social supports and is able to approach friends, but does not have any formal or professional support networks and that she does not have any family support.

19. I do not consider that the documents referred to and the evidence relied on by the Applicant satisfies the requirement that the debt was attributable solely to an administrative error made by the Commonwealth.  There were other causes including the lack of candid disclosure of her true position in regards to her study; the failure to respond to requests and correspondence from Centrelink, and the incorrect statements which I accept were made by her as to her attendance at a course of study so as to qualify for the payments.

20. In addition, the records relied on by the Respondent in this matter establish that, notwithstanding denials by the Applicant, that she knowingly made the false statements and therefore the debt cannot be waived because the debt resulted at least partly from the debtor knowingly making a false representation as to her participating in a course through the OTEN correspondence network. 

21. The Applicant also contends that in her case there are special circumstances which justify the waiver of the debt.

22. The expression “special circumstances” requires some feature which distinguishes the Applicant’s case from others so as to take it out of the usual or ordinary type of case.  Factors to take into account would include, for example, circumstances where something unfair, unintended or unjust had occurred: see Groth and Secretary, Department of Social Security [1995] FCA 1708. Whether such circumstances exist depends on the context in which they occur and whether strict enforcement of the liability would be unfair, unjust, unreasonable or otherwise inappropriate.

23. In the present case the Applicant has had the benefit of the payments and in my opinion there is no injustice or unfairness in requiring her to repay the money of which she has had the benefit but not the entitlement.

24. The Applicant’s case is that she has a history of family dysfunction and homelessness during the relevant period, and that she was unaware of the obligation to advise Centrelink that she was not a student because she did not receive notices advising her that she was being paid as a full time student.  She says that due to her limited means, she was not at home and was “couch surfing” with friends and acquaintances.  The evidence indicates that letters sent by Centrelink to her advising of her obligation and requirements for payment had not been returned to the department as having been sent to the wrong address.

25. I accept that the Applicant suffers from asthma and has had a family history of dysfunction and homelessness and that she is in difficult financial circumstances.  However, she is in relatively good health and receives payment of family tax benefits and parenting payment and that she is paying a modest amount in discharge of the debt at the present time in the order of $15 per fortnight.  I consider that there is very limited capacity to make any repayments, but I do not think that on the material before me the payment of $7.50 per week is inappropriate or excessive.  I have also taken into account the Applicant’s father appeared with her and on her behalf at the hearing and this indicates that there is some support and goodwill towards her although there is no evidence of any specific financial support from her family.

26. Having regard to the foregoing considerations, I do not consider that there are special circumstances in this case which would warrant the waiver of the debt or any part of it.  I note that in s 1237AAD of the Act when referring to special circumstances the section makes it clear that financial hardship alone is not sufficient to make it desirable that the debt should be waived.

    CONCLUSION

27. Having regard to the foregoing considerations and evidence, the decision under review in this matter is affirmed.

I certify that the preceding 27 (twenty - seven) paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin QC, Deputy President

...............................[sgd].........................................

Associate

Dated 17 March 2015

Date(s) of hearing	3 February 2015
Date final submissions received	5 February 2015
Advocate for the Applicant	Arthur Printzios, Father of the Applicant
Solicitors for the Respondent	Kate Martini, Department of Human Services