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

This matter concerned an application for review of a decision by the Secretary of the Department of Social Services regarding an overpayment of Austudy. The applicant, Leszkay Jenkins, sought to have the debt waived. The review was heard by Senior Member Belinda Pola.

The primary legal issue before the Tribunal was whether the applicant was entitled to a waiver of the debt under section 1237AAD of the relevant Act. This section requires the Secretary to be satisfied that the debt did not result from the debtor knowingly making a false statement or omission, that there were special circumstances (beyond mere financial hardship) making waiver desirable, and that waiver was more appropriate than writing off the debt. The Tribunal also considered whether the applicant had a notional entitlement to Newstart Allowance during the period the debt arose.

The Tribunal considered evidence including the applicant's Austudy claim stating he was enrolled in a Marketing course at OTEN from February 2010 to February 2011, and a Statement of Attainment from Vision Fix Software & Support Pty Ltd. However, letters from OTEN indicated the applicant was not enrolled there in 2010, despite extensive searches under various aliases. The Tribunal was not satisfied that the applicant had a notional entitlement to Newstart Allowance. Consequently, the Tribunal concluded that the debt was correct and recoverable, and that neither write-off nor waiver was warranted. The decision under review was affirmed.