LIPPIATT and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND

[2010] AATA 330

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 330

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/4944

GENERAL ADMINISTRATIVE DIVISION		)
Re		STEPHANIE LIPPIATT

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr S Karas, AO, Senior Member

Date6 May 2010

PlaceBrisbane

Decision The Tribunal varies the decision under review to the extent that the balance of the debt owing by the applicant to the Commonwealth is waived as of today’s date.

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

Senior Member

CATCHWORDS

SOCIAL SECURITY – Benefits and entitlements – Youth allowance – Whether the applicant has incurred a debt – If so, whether it should be recovered – Application of the discretion to waive all or part of the debt in special circumstances – Special circumstances deemed to exist – Decision varied.

Social Security Act 1991 (Cth) ss 541, 541B, 543A, 1223, 1236, 1237A, 1237AAD

Social Security (Administration) Act 1999 (Cth) ss 68, 100

Re Davy and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 693

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

Re Groth and Secretary, Department of Social Security (1995) 37 ALD 797

Re Ivovic and Director-General of Social Services (1981) 3 ALN N95

Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9

REASONS FOR DECISION

6 May 2010 Mr S Karas, AO, Senior Member

BACKGROUND

1.      Stephanie Lippiatt (the applicant) claimed and was granted youth allowance by Centrelink on 31 March 2008 on the basis that she was enrolled as a full time student at Brisbane North Institute of TAFE.  A decision by Centrelink on 19 March 2009 and amended on 30 March 2009 was made to recover a youth allowance debt of $2,814.46 for the period 14 July 2008 to 4 February 2009 (the relevant time period).  This decision was affirmed by the Social Security Appeals Tribunal (SSAT) on 22 September 2009.  On 19 October 2009 the applicant sought a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

ISSUES AND LEGISLATION

2.      The issues for the Tribunal to determine are:

(a)Whether the applicant has incurred a youth allowance debt; and

(b)If so, whether it should be recovered.

3.      The legislation relevant in this matter is the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

4. Section 540 of the Act provides that a person is qualified for youth allowance if throughout the relevant period the person is of youth allowance age and satisfies the activity test. Subsection 541(1)(a) of the Act provides that a person satisfies the activity test if throughout the relevant period the person is undertaking full time study. Undertaking full time study is defined in s 541B of the Act as being enrolled in an approved course of education or study at an educational institution and undertaking at least three-quarters of the normal amount of full time study, unless a concessional study load applies. A full time study load is defined as a load that enables a person to complete their study in a minimum time. Subsection 543A(2) of the Act provides that a person who has neither reached the age of 18 years nor completed year 12 or its equivalent is not of youth allowance age. As the applicant was neither 18 nor had she completed year 12 or its equivalent during the relevant period, she did not satisfy the activity test and was therefore not of youth allowance age.

5. Subsection 100(1) of the Administration Act provides for a retrospective rate reduction where a person fails to comply with a notice issued under s 68(2) of the Administration Act. Section 1223(1) of the Act provides that payments that a person receives but to which they are not entitled becomes a debt due to the Commonwealth. Section 1236 of the Act provides for the possibility of writing off or delaying the recovery of a debt for a period. Section 1237A(1) of the Act provides that a debt must be waived if it was attributable solely to administrative error and if the monies paid as a result of that error were received in good faith. Section 1237AAD of the Act provides a discretion to waive all or part of the debt in the special circumstances of a case, other than financial hardship, where the person did not knowingly omit or fail to comply with a provision of the Act.

EVIDENCE

6.      A hearing of this matter was held on 8 March 2010.  The applicant appeared with her mother and was unrepresented.  Mr Hamilton appeared for the Respondent.

7.      The applicant who is nearly 18 years old lives with her mother and siblings.  She is not working and is in receipt of Centrelink benefits.

8.      She referred to her doing a course at TAFE in 2008.  She thought she was enrolled for the whole year as was the case in 2007.  It was all arranged and paid for by the Redcliffe Area Youth Space.  The applicant had no proof of her enrolment as she received no documentation from TAFE to confirm her enrolment.  She simply assumed that she was enrolled.  Only after completing workbooks and having submitted them did TAFE inform the applicant that she wasn’t in fact enrolled. 

9.      She recalls letters from Centrelink asking her to advise them of any change in her course or circumstances.  She received some five letters from Centrelink but did not respond as she did not know what she “wanted to do”.

10.     The applicant confirmed that she is paying off the Centrelink debt at the rate of $28 a fortnight.

11.     The applicant thought she was enrolled at TAFE for the 2008 year because a representative of Youth Space had enrolled her in the past and she assumed that they had continued to take responsibility for her enrolment and therefore had enrolled her. 

12.     The applicant hopes to finish an Aged Care course in a couple of weeks and be eligible for work in that area.  Mr Williams the Manager of Redcliffe Area Youth Space explained how they enrol students at TAFE with a simple phone call process.  He referred to numeracy and literacy difficulties of the applicant who had not completed year 10.  He was also under the impression that the applicant was enrolled at TAFE in 2008 but had no confirmation from TAFE about this. 

13.     Mr Hamilton confirmed that on the basis of Centrelink records she was not enrolled at TAFE for the second semester in 2008.  He noted from the evidence of the applicant and Mr Williams that there was “confusion” about the applicant’s TAFE enrolment for 2008.

14.     After the hearing the Legal Services Branch at Centrelink received a letter from TAFE Brisbane North confirming that the applicant was not enrolled at TAFE in the second semester 2008.

CONSIDERATION AND FINDINGS

15.     From the evidence and material before the Tribunal it appears the applicant was receiving youth allowance from Centrelink on the basis that she was enrolled as a full time student at Brisbane North Institute of TAFE.  In 2008, from April to December she received a number of letters from Centrelink informing her that she must report to Centrelink within 14 days of any changes in her position or circumstances including if she ceased to be a full time student.  According to TAFE records, the applicant was not enrolled at TAFE in the second semester in 2008.  The applicant again became a full time student in February 2009.

16.     As noted Centrelink raised a debt for overpayment of the youth allowance from 14 July 2008 to 4 February 2009.  The original debt of $3,351.75 was reduced by Centrelink to $2,814.46 for the relevant time period and is being recovered by instalments from the applicant.  Given the legislative requirements in this matter it is clear that the applicant was neither a full time student nor of youth allowance age during the relevant period and thus did not qualify for youth allowance.

17.     The Tribunal notes that the respondent had written to the applicant a number of times in 2008 regarding her circumstances.  The applicant failed to comply with the letters or respond to them.  In spite of the confusion the applicant did fail to notify Centrelink that she had ceased to be a full time student and continued to receive her regular youth allowance payments during the relevant period.  Because the applicant was not entitled to receive youth allowance during the relevant time period and did, she is indebted to the Commonwealth for $2,814.46.

18. The Tribunal notes that the debt did not arise because of an administrative error by the Commonwealth. It arose because the applicant failed to notify Centrelink that she was not undertaking full time study during the relevant period. As well the Tribunal notes the applicant is repaying the debt by regular fortnightly instalments and apparently has the capacity to repay without causing “severe financial hardship”. Therefore the debt cannot be waived pursuant to s 1237A of the Act and it would be inappropriate to write it off under s 1236 of the Act.

19. Provision exists under s 1237AAD of the Act for the exercise of a discretion to waive all or part of the debt on the grounds of “special circumstances”. The extent of that exception has not been defined in the Act but has been considered widely in case law (see for example Re Beadle and Director-General of Social Security (1984) 6 ALD 1; Re Groth and Secretary, Department of Social Security (1995) 37 ALD 797; Re Ivovic and Director-General of Social Services (1981) 3 ALN N95; Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9 and Re Davy and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 693.)

20.     The Tribunal notes that in the evidence provided by Mr Williams from Redcliffe Area Youth Space and from the applicant and her mother that there was confusion as to the applicant’s TAFE enrolment for 2008.  Mr Williams indicated that his file reflected that the applicant was not enrolled with TAFE in semester 1 of 2008 but was in the second semester.  The applicant thought she was enrolled throughout 2008 and continued to complete and hand in her work books from TAFE throughout the entire year.  Further, the TAFE college records indicate that the applicant was enrolled in the first semester for 2008 but not in the second semester.  Centrelink has relied on the TAFE records and communications in this regard in concluding that the applicant was not enrolled in TAFE for full time study during the relevant time period while she received her youth allowance payments and calculated she was indebted to the Commonwealth for $2,814.46.

21. At the hearing Mr Hamilton conceded that in the circumstances of this case given the confused evidence presented about the applicant’s TAFE enrolment for 2008 and the “casual” nature of the enrolment process as indicated by Mr Williams the respondent would not be averse to a finding that “special circumstances” existed in this case. Consequently, the Tribunal finds that “special circumstances” are present in this case given the applicant’s dysfunctional family and background, her particular circumstances and involvement with Redcliffe Area Youth Space and TAFE, the confused evidence regarding her 2008 TAFE enrolment notwithstanding TAFE’s letter to Centrelink regarding her 2008 enrolment presented at the hearing and the respondent’s contentions in this regard. In the circumstances, pursuant to s 1237AAD the Tribunal waives that part of the debt that is still outstanding as of today’s date.

DECISION

22.     The decision under review is varied to the extent that the balance of the debt owing by the applicant to the Commonwealth is waived as of today’s date.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Karas, AO, Senior Member

Signed: ......................[Sgd].......................................................
              Research Associate

Date/s of Hearing  8 March 2010
Date of Decision  6 May 2010
The Applicant was self represented
For the Respondent                  Mr B Hamilton, departmental advocate