Langley and Secretary, Department of Social Services Chief Executive Centrelink (Social security)
[2024] ARTA 470
•20 November 2024
Langley and Secretary, Department of Social Services Chief Executive Centrelink (Social security) [2024] ARTA 470 (20 November 2024)
Applicant/s: Ms Langley
Respondent: Secretary, Department of Social Services
Chief Executive Centrelink
Tribunal Number: 2024/P189942
Tribunal:Member K Hamilton
Place:Brisbane
Date:20 November 2024
Decision:The Tribunal sets aside the decision under review and, in substitution, remits the matter to the Chief Executive Centrelink for reconsideration with the following directions:
· Ms Langley’s debt is to be recalculated on the basis that Ms Langley was undertaking qualifying study and was qualified to receive pensioner education supplement in the period 30 January 2023 to 3 May 2023;
· Ms Langley was qualified to receive an education entry payment of $208, and there is no debt of education entry payment owing;
· Ms Langley’s pensioner education supplement debt as recalculated is to be recovered.
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Pensioner education supplement (PES) and education entry payment (EEP)– overpayment – debt recovery – ceased study – review of debt calculations – decision under review set aside and remitted with directions
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 201(1A) of the Social Security (Administration) Act 1999.
Statement of Reasons
BACKGROUND
This matter concerns a decision made by Services Australia – Centrelink (Centrelink) to raise and recover a debt of $1,167.76 for overpayment of pensioner education supplement (PES) in the period 30 January 2023 to 18 October 2023, and a debt of $208 for an education entry payment (EEP).
Ms Langley was in receipt of disability support pension (DSP) when she made a claim for PES on 6 February 2023. Ms Langley applied for and was granted PES from 30 January 2023 on the basis that she was studying part-time at [TAFE 1].
Centrelink later received data matching that indicated that Ms Langley was not studying in semester 1 or semester 2, 2023.
On 27 November 2024 Centrelink made a decision to raise and recover the PES debt and the EEP debt.
Ms Langley sought internal review and on 11 June 2024 an authorised review officer (ARO) affirmed the decision. Ms Langley then applied to the Administrative Appeals Tribunal (AAT) seeking independent review.
From 14 October 2024 the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The matter was heard on 12 November 2024. Ms Langley participated in the hearing by MS Teams video and gave evidence under affirmation.
The Tribunal had regard to documents provided by Centrelink as being relevant to the decision under review, numbered pages 1-160. Ms Langley was provided with the opportunity to lodge further evidence with the Tribunal following the hearing of this matter. No further material was received and the Tribunal has proceeded to make a decision based on the material presently available.
ISSUES
The statutory provisions relevant to this review are contained in the Social Security Act 1991 (the Act).
The issues which arise in this case are:
· Was Ms Langley undertaking qualifying study and entitled to receive PES in the period 30 January 2023 to 18 October 2023?
· Was Ms Langley entitled to receive an EEP?
· If not, can recovery of any resulting overpayments be waived?
CONSIDERATION
Issue 1 – Was Ms Langley undertaking qualifying study and entitled to receive PES in the period 30 January 2023 to 18 October 2023?
Section 1061PA of the Act sets out the qualification requirements for PES. Apart from age and residency requirements, a person must be undertaking qualifying study and be receiving a payment attracting PES. DSP is one such payment.
Section 1061PB of the Act defines when a person is undertaking qualifying study. This requires that a person:
·is enrolled in an approved course of education at an educational institution, or was enrolled in the course and always intended to re-enrol in the course when re‑enrolments are next accepted; and
·is a full-time student or a concessional study-load student in respect of that course.
A full-time student must be undertaking at least three-quarters of the normal amount of full-time study for their particular course: section 1061PD of the Act. A concessional study-load student may study at least one quarter (25%) of a full-time study load if there is suitable evidence that they are unable to undertake the normal amount of full-time study because of a physical or psychiatric disability.
Centrelink’s letter dated 22 February 2023 confirming Ms Langley had been granted PES noted that she had been granted a workload concession. This required that she remain enrolled in at least 25% of the normal full-time workload for her course.
Ms Langley enrolled in the Certificate IV [course] with [TAFE 1] WA. This is an approved course of education at an educational institution. Ms Langley’s enrolment confirmation shows that she enrolled in 8 subjects for 2023, each commencing from 30 January 2023. This equates to more than 25% of a normal full‑time workload for the course.
Ms Langley said that she was enrolled and undertaking study in semester 1, 2023, until April 2023. At this time, she was told by her ex-partner that she had to move out of their shared house. She was unable to secure stable accommodation and her mental health deteriorated as a result.
Ms Langley provided a ‘participation search’ provided by [TAFE 1] WA which she said showed the classes she attended each week in semester 1, 2023. Ms Langley said that attendances were taken by her lecturers at the start of each lesson. This document indicates that attendances were recorded for Ms Langley in various subjects each week from 1 February 2023 through to 3 April 2023.
Ms Langley told the Tribunal that while she did not attend classes after 3 April 2023, she was still undertaking some assessment tasks including participating in role plays. These role plays finished on 19 April 2023.
Ms Langley was then withdrawn by her lecturers from 6 of her subjects on 3 May 2023. She believes that her lecturers withdrew her enrolment as they did not think she was coping with the subject matter in the course. Ms Langley said that she intended to resume her studies in semester 2, 2023, but has not yet been able to return to her studies due to her mental health issues.
I am satisfied that Ms Langley was enrolled and undertaking qualifying study in the period 30 January 2023 until 3 May 2023. She was therefore qualified to receive PES in this period.
Ms Langley was not undertaking qualifying study in the period 4 May 2023 to 18 October 2023. Centrelink will be directed to recalculate Ms Langley’s PES debt applying a start date for the debt of 4 May 2023.
Issue 2 – Was Ms Langley entitled to receive an EEP?
Section 665E of the Act provides that a person is qualified for an EEP if they are receiving DSP, PES is payable to the person, and they have not previously received a payment of EEP in the current calendar year.
The amount of an EEP is $208: section 665F of the Act.
As PES was payable to Ms Langley in the period 30 January 2023 to 3 May 2023, she was qualified to receive an EEP at the time it was paid to her. There is no debt of EEP.
Issue 3 – Is there any basis on which part or all of the debt should not be recovered?
Where a person has received a payment that is more than their entitlement, such overpayments are a debt due to the Commonwealth: section 1223 of the Act.
Section 1237 of the Act provides that there are only limited circumstances in which a properly raised debt is not to be recovered. As a general rule, 2 provisions may potentially operate to relieve Centrelink debtors from a liability to repay: section 1237A (sole administrative error on the part of the Commonwealth, and where the debtor receives payments in good faith), and section 1237AAD, which is a discretionary waiver provision that can be applied in instances where ‘special circumstances’ exist, and where, amongst other things, a person does not knowingly fail to comply with their Centrelink obligations, and it is more appropriate to waive than write off recovery. To ‘waive’ recovery of a debt means that it will never have to be repaid.
Here the debt arose as Ms Langley did not advise Centrelink that she had ceased study in May 2023. There is no basis for the debt to be waived under section 1237A of the Act.
That leaves for consideration ‘special circumstances’. In order for waiver to be available under section 1237AAD of the Act on the basis of special circumstances, the debt cannot arise from the debtor knowingly providing false information or failing to comply with their obligations.
Ms Langley told the Tribunal that she was experiencing significant stressors at the time she ceased study which adversely impacted her mental health. She was under regular (weekly) treatment with her GP and psychologist and was engaged in a 30-day recovery program designed to keep participants experiencing mental health crises from requiring hospitalisation. Ms Langley told the Tribunal that she was overwhelmed and struggling to manage her mental health. She simply did not think to make contact with Centrelink.
I am satisfied that consideration of a special circumstances waiver is not excluded on the basis of any knowing failure on the part of Ms Langley.
For special circumstances to exist, there needs to be something which distinguishes a person’s case from the ordinary or usual case – see Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25. The starting position is that overpaid Commonwealth monies should generally be recovered.
The Social Security Guide at 6.7.3.40 provides the following explanation:
In Davy and Secretary, DEWR (2007) AATA 1114, the AAT held that:
‘special circumstances are not merely directed to the person's own circumstances. Rather they are directed to those that are 'special enough circumstances ... that make it desirable to waive'. That necessarily requires a consideration of the person's individual circumstances but also a consideration of the general administration of the social security system.’
The integrity of the social security system relies on recovery of overpayments. In general, if a person has had the use and advantage of the money paid incorrectly to them and has the means to repay it without excessive hardship (e.g. through withholdings), they should do so. In such a case, special circumstances waiver would be appropriate only if the person's particular circumstances made it unjust for the general rule to apply. Their circumstances would need to distinguish their situation from that of the many other people who do have to repay their debts.
Ms Langley told the Tribunal that she lives with autism, post-traumatic stress disorder and an eating disorder. Her medical conditions are managed proactively with input from a team of health professionals. She has no income other than her Centrelink payments. She has a small amount of other debts owing to [a company] and other ‘buy now pay later’ providers of a couple of thousand dollars and she is managing her repayments on these debts. She has no assets other than clothing and personal items.
While Ms Langley has and continues to experience a number of challenging circumstances, I find that Ms Langley’s circumstances are not unusual, uncommon, or exceptional and that there is no basis to exercise the discretion contained in section 1237AAD of the Act to waive any part of the debt as recalculated by Centrelink.
Section 1236 of the Act allows for the ‘write off’ of the recovery of a debt for a stated period or otherwise. It is typically applied where a debtor has no capacity to repay a debt. Ms Langley is currently in receipt of Centrelink payments. I am satisfied that the debt as recalculated can be recovered from Ms Langley’s Centrelink payments by instalments at a manageable rate that would not cause her undue hardship. Section 1236 of the Act has no application in this case.
The PES debt as recalculated by Centrelink is therefore to be recovered.
DECISION
The Tribunal sets aside the decision under review and, in substitution, remits the matter to the Chief Executive Centrelink for reconsideration with the following directions:
· Ms Langley’s debt is to be recalculated on the basis that Ms Langley was undertaking qualifying study and was qualified to receive pensioner education supplement in the period 30 January 2023 to 3 May 2023;
· Ms Langley was qualified to receive an education entry payment of $208, and there is no debt of education entry payment owing; and
· Ms Langley’s pensioner education supplement debt as recalculated is to be recovered.
| Date(s) of hearing: | Tuesday 12 November 2024 |
| Representative for the Applicant: | Self |
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