Leszkay Jenkins and Secretary, Department of Social Services (Social services second review)

[2020] AATA 28

Leszkay Jenkins and Secretary, Department of Social Services (Social services second review) [2020] AATA 28 (14 January 2020)

Division:GENERAL DIVISION

File Number:          2019/3149

Re:Lee Simon Leszkay Jenkins

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Belinda Pola, Senior Member 

Date:14 January 2020

Place:Brisbane

The decision under review is affirmed.

...............................[Sgd].........................................

Senior Member Belinda Pola

Catchwords

SOCIAL SECURITY  - Austudy – Overpayment of austudy – Debt due to Commonwealth – Waiver of debt – Special circumstances – Notional entitlement to newstart allowance – No special circumstances that make it desirable to waive debt – Debt recoverable – Decision under review affirmed.

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Student Assistance Act 1973 (Cth)

Student Assistance (Education Institutions and Courses) Determination 2009 (No. 2) (Cth)

Student Assistance (Education Institutions and Courses) Amendment Determination 2010 (No.1) (Cth)

Cases

Beadle and Director-General of Social Security (1984) 6 ALD 1

Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435

Oberhardt v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1923

Robinson and Secretary, Department of Social Services [2014] AATA 446 (4 July 2014)

Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190

Timothy Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114

REASONS FOR DECISION

Belinda Pola, Senior Member
14 January 2020

BACKGROUND

1. On 15 February 2010[1], the Applicant, Mr Lee Simon Leszkay Jenkins, lodged a claim for Austudy[2] with the Department of Human Services (the ‘Department’)[3]. As part of this claim, the Applicant advised the Department they were undertaking a Certificate in Marketing at Open Training and Education Network (‘OTEN’), with the course running from 20 February 2010 to 20 February 2011, on a full-time basis for Semester 1 and Semester 2.

   [1]     Exhibit R1, T4, page 30.

   [2] Austudy is income support for mature students and Australian Apprentices aged 25 years and older, s568 of the Social Security Act 1991 (the ‘Act’) outlines qualification for Austudy.

   [3]     Exhibit R1, T4, pages 30 to 34.

2. On 10 November 2011[4], the Department determined the Applicant had a legally recoverable debt of $8,544.07 for Austudy payments received between  20 February 2010 and 5 December 2010, on the basis that the Applicant did not commence studies on 20 February 2010.

   [4]     Exhibit R1, T6, page 42.

3. On 17 June 2013[5], an Authorised Review Officer (‘ARO’) affirmed the decision to seek repayment of $8,544.07 from the Applicant.

   [5]     Exhibit R1, T9, pages 51 to 56.

4. On 17 August 2018[6], the Applicant applied to the Social Security and Child Support Division (‘SSCSD’) of the Tribunal for an external review of the decision.

   [6]     Exhibit R1, T10, pages 57 to 62.

5. On 26 April 2019[7], the SSCSD of the Tribunal affirmed the decision under review.

   [7]     Exhibit R1, T2, pages 4 to 9.

6. On 1 June 2019[8], the Applicant applied to the General Division of the Tribunal for a second review of the decision.

   [8]     Exhibit R1, T1, pages 1 to 3.

   JURISDICTION

7. This is an application to review a decision of the SSCSD of the Tribunal, which affirmed a decision to raise an Austudy debt of $8,544.07 for the period of 20 February 2010 and     5 December 2010.

8. Section 179(1) of the Social Security (Administration) Act 1999 (Cth) (‘the Administration Act’), provides that:

   179    Application for AAT second review

   (1) Application may be made to the AAT for review (AAT second review) of a decision of the AAT on AAT first review made under subsection 43(1) of the AAT Act.

   (2) For the purposes of subsection (1), the decision of the AAT on AAT first review is taken to be:

   (a) if an AAT first review affirms a decision—that decision as affirmed; or

   (b) if an AAT first review varies a decision—that decision as varied; or

   (c) if an AAT first review sets a decision aside and substitutes a new decision—the new decision; or

   (d) if an AAT first review sets a decision aside and sends the matter back to the Secretary for reconsideration in accordance with any directions or recommendations of the AAT—the directions or recommendations of the AAT.

9. The Tribunal has jurisdiction to hear this application. 

   ISSUES

10. The issues for consideration by the Tribunal in this Application are whether the Applicant:

    (a)was undertaking qualifying study in the period 20 February 2010 to 5 December 2010;

    (b)has been overpaid Austudy;

    (c)has a legally recoverable debt; and

    (d)should have all or part of the debt written off for a period or waived.

    RELEVANT LEGISLATIVE PROVISIONS

11. The following paragraphs outline relevant legislative provisions which apply to the units of study which the Applicant is enrolled in for the purposes of the Application before the Tribunal.

12. Section 568 of the Social Security Act 1991 (the ‘Act’) provides that a person qualifies for Austudy payment in respect of a period if, throughout the period, the person satisfies the activity test:

    568     Qualification for austudy payment—general rule

    Subject to this Subdivision, a person is qualified for an austudy payment in respect of a period if, throughout the period:

    (a)the person satisfies the activity test (see Subdivision B); and

    (b)the person is of austudy age (see Subdivision C); and

    (c)the person is an Australian resident.

    Note: Division 2 sets out situations in which an austudy payment is not

    person qualifies for it.

13. Section 569 of the Act outlines the activity test in respect of eligibility for Austudy payment:

    569     Activity test

    General

    (1)Subject to subsection (2), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is undertaking qualifying study (see section 569A).

    Persons who do not satisfy the activity test

    (2)    A person cannot be taken to satisfy the activity test if the person:

    (a)    is a new apprentice; or

    (b)    has completed a course for:

    (i)a degree of Doctor at an educational institution; or

    (ii)a qualification at a foreign institution that is, in the Secretary’s opinion, of the same standing as a degree of Doctor at an educational institution.

    Note: For educational institution see subsection 23(1).

14. Section 569A of the Act provides that a person is undertaking qualifying study if:

    569A   Undertaking qualifying study

    For the purposes of this Part, a person is undertaking qualifying study if:

    (a)the person:

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

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

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

    (b)the course in which the person is enrolled, or intends to enrol, is an approved course of education or study (see section 569B); and

    (c)the person is a full-time student or a concessional study-load student in respect of that course (see sections 569C and 569D); and

    (d)the person satisfies the progress rules (see sections 569G and 569H).

    Note: Only one course of education can be considered in deciding if a person satisfies the undertaking qualifying study requirement: see 569AA.

15. Section 569B of the Act provides for what is considered to be an approved course of education or study:

    569B   Approved course of education or study

    For the purposes of paragraph 569A(b), a course is an approved course of education or study if it is a course determined, under section 5D of the Student Assistance Act 1973, to be a secondary course or a tertiary course for the purposes of that Act.

16. Relevantly, section 5D of the Student Assistance Act 1973 (the ‘SA Act’) provides:

    5D      Minister may determine secondary and tertiary courses etc.

    (1) The Minister may, for the purposes of this Act, determine in writing that:

    (a) a course of study or instruction is a secondary course, or a tertiary course; or

    (b) a part of a course of study or instruction is a part of a secondary course, or a part of a tertiary course.

    (2)   For the purposes of this section, a determination that:

    (a)   was made under paragraph 7(1)(c) as in force before the day on which this section commences; and

    (b)   was in force immediately before that day;

    is taken to be a determination under subsection (1) of this section and may be amended or repealed accordingly.

    (2A) A determination under subsection (1) may make provision for and in   relation to a specified course, that ceases to be a secondary course or  a tertiary course, continuing to be a secondary course or a tertiary  course in relation to specified persons in specified circumstances.

    Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.

    (3)   A determination under subsection (1) is a legislative instrument.

17. The relevant determination as at the time of study for this Application was the Student Assistance (Education Institutions and Courses) Determination 2009 (No. 2) (the ‘2009 Determination’), which commenced on 27 November 2009, and was amended by the Student Assistance (Education Institutions and Courses) Amendment Determination 2010 (No.1).

18. Section 569C of the Act contains provisions relating to what is considered a full-time student:

    569C   Full-time students

    For the purposes of this Subdivision, a person is a full-time student in respect of a course if:

    (a)in the case of a person who is enrolled in the course for a particular study period (such as, for example, a semester)— the person is undertaking at least three quarters of the normal amount of full-time study in respect of the course for that period; or

    (b)in the case of a person who intends to enrol in the course for a particular study period—the person intends to undertake at least three quarters of the normal amount of full-time study in respect of the course for that period.

    Note:   For normal amount of full-time study see section 569E.

19. Section 569E of the Act provides for what is considered to be a normal amount of full-time study in respect of a course:

    569E   Normal amount of full-time study

    (1)For the purposes of this Subdivision, the normal amount of full-time study in respect of a course is:

    (a)    if:

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

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

    the full-time student load for the course; or

    (b)if the course is not such a course and the institution defines an amount of full-time study that a full-time student should typically undertake in respect of the course—the amount so defined; or

    (c)otherwise—an amount of full-time study equivalent to the average amount of full-time study that a person would have to undertake for the duration of the course in order to complete the course in the minimum amount of time needed to complete it.

    (2) Without limiting subsection (1), the normal amount of full-time study in respect of a course is an average, taken over the duration of the period for which the person in question is enrolled in the course, of 20 contact hours per week.

20. The following paragraphs outline relevant legislative provisions which apply to debts incurred resulting from a lack of qualification for a payment, or an overpayment. A debt pursuant to subsection 1223(1) of the Act is incurred when:

    1223   Debts arising from lack of qualification, overpayment etc.

    (1)   Subject to this section, if:

    (a)   a social security payment is made; and

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

    the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.

    Writing off a debt

21. Section 1236 of the Act provides that the Secretary may write off debt:

    1236    Secretary may write off 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.

    (1B)For the purposes of paragraph (1A)(a), a debt is taken to be irrecoverable at law if, and only if:

    (b) there is no proof of the debt capable of sustaining legal proceedings for its recovery; or

    (c) the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or

    (d) the debtor has died leaving no estate or insufficient funds in the debtor’s estate to repay the debt.

    (1C)For the purposes of paragraph (1A)(b), if a debt is recoverable by means of:

    (a)   deductions from the debtor’s social security payment; or

    (b) deductions under section 84 of the A New Tax System (Family Assistance) (Administration) Act 1999; or

    (c)   setting off under section 84A of that Act;

    the debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the debtor being in severe financial hardship.

    (2)   A decision made under subsection (1) takes effect:

    (a) if no day is specified in the decision—on the day on which the decision is made; or

    (b) if a day is specified in the decision—on the day so specified (whether that day is before, after or on the day on which the decision is made).

    (3) Nothing in this section prevents anything being done at any time to recover a debt that has been written off under this section.

    Administrative error

22. Section 1237A of the Act provides that:

    (1) Subject to subsection (1A), 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 a part of a debt that was caused partly by administrative error and partly by one or more other error by the debtor).

    Special circumstances

23. Section 1237AAD of the Act provides that:

    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 a false representation; or

    (ii) failing or omitting to comply with a provision of this Act, the Administration 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.

    CONSIDERATION

24. The Application was heard in Brisbane on 10 December 2019. The Applicant appeared in person and was self-represented. The Respondent was represented in person by           Mr Ben Dube of Sparke Helmore. The Applicant requested that his partner be called as a witness to give evidence as part of the hearing.

25. The Tribunal considered oral submissions made by both the Applicant and the Applicant’s Witness, the Respondent; in addition to submitted written evidence, as outlined in the Exhibit Register (refer to Annexure 1).

    Was the Applicant undertaking qualifying study in the period 20 February 2010 to              5 December 2010?

26. The Tribunal notes the following submitted evidence:

    (a)A claim lodged by the Applicant for Austudy with the Department on  15 February 2010 at 11am, which stated that the following study details:

    “Level of Study  Certificate

    Name of course  Marketing

    Course ID number  17855

    Institution/campus  oten

    Student ID number  319558071

    Year/stage  Tertiary – first year

    Official course start date             20 February 2010

    Official course end date              20 February 2011

    Semester 1  Full time

    Semester 2  Full time

    Study hours per week                 27” [9].

    [9]     Exhibit R1, T4, pages 30 to 34.

    (b)A Statement of Attainment dated 4 August 2010 from Vision Fix Software & Support Pty Ltd, stating:

    “This is a statement that Lee Jenkins has fulfilled the requirements of the following ten units from the Information Technology Training Package, ICAITS014C – Connect Hardware Peripherals, ICAITS024C – Connect Internal Hardware Components, ICAITS115B – Maintain Equipment and Software in Working Order, ICAITU007B – Maintain Equipment and Consumables, ICAITS020B – Install Network Hardware to a Network, ICAITS121A – Administer Network Peripherals, ICAITS122A – Troubleshoot and resolve network problems, ICAITS193B – Connect a workstation to the Internet, ICAITB173A – Install Intelligent Hub/Switch, ICAITI097B – Install and Configure a Network”[10].

    [10]    Exhibit A1.

    (c)A letter of 4 August 2010 from Vision Fix Software & Support Pty Ltd by                Alan Mulraney, Managing Director and Course Instructor, stating:

    “Your certificate is enclosed, which not only allows you to refer to yourself as an “Accredited Computer Repairer”, but also will provide you with credits if you decide to enrol with the TAFE system in an Information Technology Training package that includes any of the ten modules that you have completed”[11].

    [11]    Exhibit A1.

    (d)A letter from Open Training and Education Network (‘OTEN’) dated  9 November 2011 stating that in relation to the Applicant, “Please be advised that the abovementioned student was not enrolled at the TAFE NSW Open Training and Education Network (OTEN) for the 2010 academic year”[12].

    (e)A letter of inquiry from the Department to OTEN of 23 January 2012, seeking to check the enrolment of the Applicant under the following names, “Lee Simon Leszkay Jenkins, AKA Simon Lee Jenkins, AKA, Simon Lee Leszkay, AKA Simon Lee Milford, AKA Simon Lee Smith, AKA Lee Simon Milford, AKA David Smith”, and:

    “1) Please provide subjects undertaken and the number of hours the above named student enrolled in and completed for Semester 1 2010 and Semester 2 2010.

    2) Please provide academic results for the above named student for Semester 1 2010 and Semester 2 2010.

    3) Please advise whether the above name student paid their fees in full for the course they were enrolled in in Semester 1 2010 and Semester 2 2010.

    If fees were not paid in full, please advise of the full amount of fees, the amount paid, and the amount outstanding for the above named student”[13]. [sic]

    (f)A fax from OTEN dated 23 January 2013 which stated, “I have searched the OTEN database under the names you have given me and I cannot find any enrolments under any of those names for 2010. In our computer system it is possible to call up a list of Tafe NSW students born 16/06/1980. The only name on the list is Lee Simon Jenkins, with the Tafe id that you previously gave me”[14].

    (g)A further fax from OTEN dated 23 January 2013 which stated, “Lee Simon Leszkay Jenkins (dob) Tafe id: has never been enrolled at OTEN”[15].

    [12]    Exhibit R1, T7, page 44.

    [13]    Exhibit R1, T8, page 48.

    [14]    Exhibit R1, T8, page 49.

    [15]    Exhibit R1, T8, page 50.

1. The Tribunal notes numerous letters[16] sent from the Department (Respondent) asking the Applicant to update their enrolment information if their circumstances changed, to ensure the Applicant was receiving their correct entitlement (to Austudy).

   [16]    Letters dated 15 February 2010 (Exhibit R1, T15 pages 124 to 126); 18 February 2010 (Exhibit R1, T15 pages 127 to 129); 1 March 2010 (Exhibit R1, T15, pages 130 to 133; 24 May 2010 (Exhibit R1, pages 134 to 137); 16 August 2010 (Exhibit R1, T15, pages 142 to 145); 8 November 2010 (Exhibit R1, T15, pages 146 to 149); and again on 8 November 2010 (Exhibit R1, T15, pages 150 to 152).

2. The Applicant gave evidence to the Tribunal that they had read these letters, and claimed that they ignored these letters as the Applicant had told their Job Network Provider to update Centrelink of the change in their study arrangements via fax after receiving confirmation of their enrolment with Vision Fix Software & Support Pty Ltd in February 2010.

3. There is no evidence before the Tribunal which corroborates with the statement from the Applicant that a fax had been sent from their Job Network Provider to update Centrelink of the change in their study arrangements, or evidence that the Applicant had contact with a Job Network Provider at the time.

4. In evidence, the Applicant accepted that they did not inform the Department they were no longer undertaking the ‘Marketing’ course with ‘OTEN’ as per their original claim made on 15 February 2010.

5. In addition, the Applicant accepted that the course they undertook with Vision Fix Software & Support Pty Ltd was not an eligible course for the purposes of claiming Austudy. This was with reference to the letter of 4 August 2010, submitted by the Applicant stating that the completed study “will provide you with credits if you decide to enrol with the TAFE system in an Information Technology Training package that includes any of the ten modules that you have completed”. [emphasis added]

   32.The Tribunal refers to documents provided by Vision Fix Software & Support Pty Ltd (referenced in paragraph 26 (b) and (c) of this Decision), which do not evidence that the Applicant was enrolled in and undertaking qualifying study for an approved course in accordance with the 2009 Determination.

6. The Tribunal further notes the correspondence from OTEN (outlined in paragraph 26 (d) to (g) of the Decision which confirms that the Applicant was not enrolled in Marketing at  OTEN for the period they were claiming Austudy, despite the Applicant stating this in their original claim for Austudy with the Department (as outlined in paragraph 26 (a) of this Decision).

7. The Tribunal finds that the Applicant does not qualify for Austudy in accordance with s568 of the Act as they were not undertaking qualifying study for the period 20 February 2010 to 5 December 2010.

   Whether the Applicant has been overpaid Austudy?

8. The Tribunal finds the Applicant was overpaid Austudy during the period of  20 February 2010 to 5 December 2010, as the Applicant was not entitled to the payment of Austudy on the basis they did not undertake qualifying study during this period.

9. Debt calculations were submitted in evidence totalling $8,544.07 for the period of 20 February 2010 to 5 December 2010[17]. The Tribunal notes these calculations, and that the rate of Austudy paid to the Applicant during this period was consistent with the Applicant’s circumstances at the time.

   [17]    Exhibit R1, T7, page 45.

   Whether the Applicant has a legally recoverable debt?

10. The Tribunal finds that the Applicant was in receipt of Austudy payments for the period of 2 March 2010 through to 7 December 2010[18], which the Applicant was not entitled to receive, on the basis outlined in the above mentioned paragraphs of this Decision.

    [18]    Exhibit R1, T7, page 45.

    38.The Tribunal finds that the amount of Austudy received by the Applicant totalling $8,544.07 is a debt due to the Commonwealth by the Applicant and constitutes a legally recoverable debt under s1223(1) of the Act.

    Whether the Applicant should have all or part of the debt written off for a period or waived?

11. As previously outlined in this Decision, there are circumstances where the recovery of outstanding debts to the Commonwealth can be either written off or waived. Relevant to the Applicant’s legally recoverable debt, the Respondent may write off or waive the Applicant’s debt if the requirements set out in s1236, s1237A or s1237AAD of the Act are met.

    Write off debt (s1236 of the Act)?

12. Section 1236 of the Act gives the Secretary power to write off the debt for a stated period or otherwise if one or more criteria are met in s1236(1A) of the Act.

13. The Tribunal was presented with evidence that the Applicant’s debt was currently being recovered in fortnightly withholdings by the Department (the Respondent) from the Applicant’s current social security payment, with documentation showing that the Applicant had repaid $5,292.31 as at 10 September 2018, leaving a balance of $3,251.31[19]. The Respondent submitted that as of 12 September 2019 the Applicant had repaid $5,607.31 with a balance of $2,936.76 remaining[20].

    [19]    Exhibit R1, T5, pages 35 to 38.

    [20]    Exhibit R2, page 15, paragraph 5.62.

14. In evidence before the Tribunal, the Applicant claimed that the debt was a burden, and that it would be unjust to continue to impose the debt. The Tribunal was not presented with any corroborating evidence to suggest that the Applicant could no longer continue to repay the debt through fortnightly deductions from their current social security payment as has been the case since 20 December 2011[21].

    [21]    Exhibit R1, T5, page 35.

15. The Tribunal is satisfied that the debt is recoverable at law, the Applicant has the capacity to repay the debt, the whereabouts of the Applicant is known, and that there is no evidence to suggest it is not cost effective for the Commonwealth to take action to recover the debt. 

16. The Tribunal finds that the Applicant’s debt to the Commonwealth cannot be written off pursuant to s1236 of the Act.

    Waiver of debt arising from Administrative error (s1237A of the Act)?

17. Section 1237A of the Act provides that the Commonwealth 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.

18. The Tribunal refers to Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190, at paragraph 35, where the Full Federal Court observed:

    “The ordinary or usual interpretation of the phrase ‘attributable solely to’ is that it refers to the single or sole cause of the relevant act or event. The word ‘attributable’ means ‘capable of being attributed’. It involves an objective assessment of causation. The words ‘a debt attributable solely to an administrative error’ can be paraphrased as meaning that the only cause that objectively can be ascribed to the relevant debt is an administrative error.”

19. Evidence submitted before the Tribunal shows that the Applicant was issued with a number of notices (in the form of letters to the Applicant[22]) under s68(2) of the Administration Act while receiving Austudy. These letters advised the Applicant to inform the Respondent (the Department) of any changes in their circumstances which may in turn affect their entitlement to receive Austudy.

    [22]    Letters dated 15 February 2010 (Exhibit R1, T15 pages 124 to 126); 18 February 2010 (Exhibit R1, T15 pages 127 to 129); 1 March 2010 (Exhibit R1, T15, pages 130 to 133; 24 May 2010 (Exhibit R1, pages 134 to 137); 16 August 2010 (Exhibit R1, T15, pages 142 to 145); 8 November 2010 (Exhibit R1, T15, pages 146 to 149); and again on 8 November 2010 (Exhibit R1, T15, pages 150 to 152).

    48.The Tribunal notes the Applicant’s evidence that they had asked their Job Network Provider to update Centrelink of the change in their study arrangements via fax after receiving confirmation of their enrolment with Vision Fix Software & Support Pty Ltd in February 2010. However, as stated in previous paragraphs of this Decision, there is no evidence before the Tribunal which corroborates with this statement from the Applicant.

20. The Tribunal further notes that the Applicant was able to advise the Department on         15 June 2010 and 13 August 2010 to redirect a portion of the Austudy payments they had been receiving to utility companies[23].

    [23]    Exhibit R1, T13, page 87 and 88.

21. The Tribunal refers to the record of a phone call with the Department (Respondent) on        11 January 2013, where it noted that the Applicant, “feels that although he did not advise he had not commenced study that he would have been eligible for nss and that this payment should have been granted to him”[24].

    [24]    Exhibit R1, T13, page 95.

22. In the Application for Review of Decision (SSCSD) to the Tribunal on 17 August 2018, the Applicant submitted, “I made a mistake and did not report that I had stopped studying so it was decided that I pay back all the Austudy payments for the entire year. My argument is that I would have been eligible for Newstart for that year, instead I have now received no payment for that year”[25].

    [25]    Exhibit R1, T10, pages 57 and 58.

23. The Tribunal finds that no part of the Austudy overpayment was attributable solely to administrative error on the part of the Commonwealth, and that the Applicant’s debt arose as a result of the Applicant’s failure to advise the Department (the Respondent) that they had not commenced the course that was submitted in their claim on 15 February 2010[26].

    [26]    Exhibit R1, T4, pages 30 to 34.

24. The Tribunal finds that the Applicant’s debt of $8,544.07 to the Commonwealth for the period of 20 February 2010 to 5 December 2010, was not attributable solely to administrative error, and therefore recovery cannot be waived under s1237A of the Act.

    Waiver in special circumstances (s1237AAD of the Act)?

25. As outlined in earlier paragraphs of this Decision, s1237AAD of the Act provides:

    1237AAD Waiver in special circumstances

    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 a false representation; or

    (ii) failing or omitting to comply with a provision of this Act, the Administration 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.

26. The Tribunal refers to Beadle and Director-General of Social Security (1984) 6 ALD 1, where the Tribunal at paragraph 12 observed:

    “An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.”

27. The Tribunal refers to Timothy Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114, where the Tribunal at paragraph 80 observed:

    “…“special circumstances” are not merely directed to the person’s own circumstances. Rather, they are directed to those that are “special 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. Waiver of the debt would mean that Mr Davy would have had the benefit of part of his DSP in circumstances in which he was not entitled to it. Certainly, he did not know that his father was giving him his own money but the fact that he was deceived by his father does not mean that it is desirable to waive the debt. He has had the benefit of the money and there is no injustice in requiring him to repay the money of which he has had the benefit but not the entitlement. His not knowing that his father had continued to receive the money does not take him outside the expectation that all social security recipients should repay money when they receive money but are not entitled to it. The system of administration of the SS Act does not visit any injustice for many if not all social security recipients but it did not lead to any injustice or unfairness on Mr Davy that is not visited, or potentially visited, upon all other recipients of social security payments under the Act. Therefore, I am not satisfied that there are special circumstances that make it desirable to waive the debt under s 1237AAD of the Act.”

28. The Application before the Tribunal originates from the Applicant receiving a payment (Austudy), to which they were not entitled as they were not undertaking qualifying study during the period which they were receiving payment.

29. Section 1237AAD(a) of the Act requires the Secretary to 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 Applicant knowingly making a false statement or representation, or knowingly failed to omit or comply with a provision of the Act or the Administration Act.

30. In regards to applying s1237AAD(a) of the Act, and the term “knowingly” in the circumstances of this Application, the Tribunal refers to Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435, where at paragraph 48 the Tribunal observed:

    “There is nothing in section 1237AAD which suggests that the word "knowingly" should be given any meaning other than that a person has actual knowledge, rather than constructive knowledge, that he or she is making a false statement or representation or that he or she is failing or omitting to comply with a provision of the Act. That actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement or the act or omission.”

31. The Tribunal has previously noted numerous letters[27] sent from the Department (the Respondent) asking the Applicant to update their enrolment information if their circumstances changed, to ensure the Applicant was receiving their correct entitlement (to Austudy), in accordance with s s68(2) of the Administration Act.

    [27]    Letters dated 15 February 2010 (Exhibit R1, T15 pages 124 to 126); 18 February 2010 (Exhibit R1, T15 pages 127 to 129); 1 March 2010 (Exhibit R1, T15, pages 130 to 133; 24 May 2010 (Exhibit R1, pages 134 to 137); 16 August 2010 (Exhibit R1, T15, pages 142 to 145); 8 November 2010 (Exhibit R1, T15, pages 146 to 149); and again on 8 November 2010 (Exhibit R1, T15, pages 150 to 152).

32. The Applicant’s evidence was that they had read these letters but not acted on them as they had assumed that the Job Network Provider had updated Centrelink of the change in their study arrangements via fax, for which there is no corroborating evidence verifying the claims by the Applicant.

33. There is evidence before the Tribunal that the Applicant was capable of contacting the  Department to update their details, as this occurred twice during the period in question, as the Applicant had sought to redirect part of their Austudy payment to utility companies[28].

    [28]    Exhibit R1, T13, page 87 and 88.

34. The Tribunal is satisfied based on  the evidence before it that:

    ·the Applicant had received the notices from the Department;

    ·these notices clearly set out the Applicant’s obligation to advise the Department should their circumstances change; and

    ·the Applicant had an obligation to advise the Department of that change.

35. Therefore, when the Applicant failed to advise the Department of the change in their circumstances, the Applicant knowingly omitted to comply with s1237AAD(a)(ii) of the Act.

36. As the Tribunal has found that the debt cannot be waived in accordance with section 1237AAD(a)(ii) of the Act, it follows that the debt cannot be waived in accordance with s1237AAD of the Act as each of these three paragraphs must be satisfied.

37. The Tribunal does not consider the Applicant’s circumstances are sufficiently special or unusual to warrant the exercise of the discretion in section 1237AAD of the Act to waive the Applicant’s debt, therefore the Applicant’s debt cannot be waived pursuant to section 1237AAD of the Act.

    Consideration of notional entitlement

38. As mentioned in earlier paragraphs of this Decision, the Applicant has raised the issue of notional entitlement. The Applicant has stated that they would have otherwise been entitled to Newstart Allowance[29], and on this basis the debt owed by the Applicant should be reduced.

    [29] Newstart Allowance is an income support payment that provides financial assistance to people aged 22 years or older but under age pension age who are unemployed or treated as unemployed, unless exempted from mutual obligation requirements. Qualification is outlined in s593 of the Act.

39. In Oberhardt v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1923 (17 December 2008), the Federal Court observed at paragraph 64:

    “… notional entitlement should not be excluded from the range of available relevant considerations in deciding whether there are "special circumstances" to waive a debt under s 1237AAD”.

40. In Robinson and Secretary, Department of Social Services [2014] AATA 446 (4 July 2014), the Tribunal observed at paragraph 52:

    “For the purpose of considering the “notional entitlement” issue, the Tribunal will assume that, on 13 February 2012, the applicant claimed newstart allowance instead of austudy payment. It is, however, insufficient for present purposes merely to assume that the applicant claimed newstart allowance on 13 February 2012 because that assumption raises questions that must be answered in order to determine, for notional setting off purposes, the total amount of newstart allowance which the applicant would have received in the relevant period. These questions (which relate to the period for which the applicant would have been qualified for newstart allowance and the amount of newstart allowance that would have been paid to her) include:

    Given that the applicant was unemployed on 13 February 2012, for what period(s) would the applicant have been unemployed throughout the relevant period (that is, in the period up until 12 October 2012)?

    How much by way of income from either full-time or part-time employment (the Tribunal notes the applicant’s evidence that she presently works part time and earns $650−$700 per week, while in receipt of newstart allowance “rent support”) would the applicant have received during the relevant period?

    For what period(s) would the applicant have satisfied the “activity test” for the purposes of s 593(1)(b) of the Act, or be taken to have satisfied the “activity test” pursuant to s 603AA of the Act, during the relevant period?

    Assuming that the applicant entered into a “Newstart Employment Pathway Plan”, within the meaning of paras (c)−(f) of s 593(1) of the Act, for what period(s), while the plan was in force, would the applicant have been complying with the requirements in the plan?”

41. The Tribunal cannot assume on the state of the evidence before it that the Applicant would have been entitled to Newstart Allowance for the period of 20 February 2010 to 5 December 2010. For example, the Applicant would need to have satisfied the activity test in s601 of the Act in regards to eligibility for Newstart Allowance[30]:

    [30]    The Tribunal notes that the activity test for Newstart Allowance as at 1 January 2010 (and in force as at 20 February 2010) is consistent with the current activity test for Newstart Allowance.      Activity test

    (1) Subject to subsections (1A) and (5), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is:

    (a) actively seeking; and

    (b) willing to undertake;

    paid work in Australia, other than paid work that is unsuitable to be undertaken by the person.

1. There is no evidence before the Tribunal which verifies that the Applicant would have satisfied the Act.

2. It is difficult to see how the Applicant would be able to satisfy the Act given the evidence before the Tribunal is that the Applicant was studying full time for the period at least until 4 August 2010, when the Applicant received their Statement of Attainment[31] (notwithstanding the study undertaken was not qualifying study in accordance with the 2009 Determination).

   [31]    Exhibit A1.

3. The Tribunal is not satisfied that the Applicant had a notional entitlement to Newstart Allowance during the period in which the debt arose.

   DECISION

4. The Tribunal concludes that the Applicant’s debt to the Commonwealth is correct and must be recovered. Write-off on the basis of severe financial hardship and waiver on the basis of administrative error, special circumstances or claims of notional entitlement is not warranted.

5. The Decision under review is affirmed.

I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member B Pola

...........................[Sgd]..........................................

Associate

Dated: 14 January 2020

Date of hearing:

10 December 2019

Applicant:

In person, self-represetned

Solicitor for the Respondent:

Mr B Dube

Sparke Helmore

‘Annexure 1 – Exhibit Register’

Exhibit

Number

Description

R1

Section 37 T- Documents, received 3 July 2019, paged 1 to 157.

R2

Respondent’s Statement of Facts Issues and Contentions, dated 12 September 2019, including Attachment A Student Assistance (Education Institutions and Courses) Determination 2009 (No.1); Attachment B Student Assistance (Education Institutions and Courses) Amendment Determination 2010 (No. 1); and Attachment C, Letter from Mr Mulraney dated 4 August 2010.

A1

Vision Fix Software & Support Pty Ltd Certificate, dated 4 August 2010.