Ma and Secretary, Department of Social Services (Social services second review)
[2024] AATA 747
•16 April 2024
Ma and Secretary, Department of Social Services (Social services second review) [2024] AATA 747 (16 April 2024)
Division:GENERAL DIVISION
File Number(s): 2022/5050
Re:Wenhong Ma
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Mr S Evans, Member
Date(s) of hearing: 5 February 2024
Date of written reasons: 16 April 2024
Place:Sydney
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal decides that the decision under review is affirmed.
................................[sgd].......................................
Mr S Evans, Member
CATCHWORDS
GRANT OF AUSTUDY PAYMENT – qualifications for Austudy payment – whether undertaking full-time study – whether intention to return to full-time study once ‘reasonable excuse’ circumstances resolved - Applicant does not meet the requirements of the activity test - automatic cancellation of a social security payment when notice is given - debts to the Commonwealth arising out of overpayment of Austudy - decision under review is affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991
Social Security (Administration) Act 1999
CASES
Oberhardt v Secretary Department of Education, Employment and Workplace Relations [2008] FCA 1923
SECONDARY MATERIALS
Guide to Social Security Law
REASONS FOR DECISION
Mr S Evans, Member
16 April 2024
Wenhong Ma (the Applicant), seeks review of a decision of the Social Services and Child Support Division (AAT1) of the Tribunal dated 16 May 2022.[1] The AAT1 affirmed the decisions of an Authorised Review Officer (ARO) at Services Australia (the Agency) dated 15 February 2013 and 29 April 2021.[2] Those decisions found that the Applicant had two debts to the Commonwealth arising out of overpayment of Austudy. The first debt was $17,643.38 for the period 3 April 2010 to 6 October 2011. The second debt was for $8,179.25 for the period 8 November 2011 to 30 June 2012.[3] I will refer to the period covering both debts as the ‘relevant period’.
[1] T-Documents, T1, p.1-2.
[2] Ibid, T2, p.3-7.
[3] Ibid; Respondent’s Statement of Facts, Issues and Contentions 17 April 2023, [1.1].
For the reasons that follow, I am satisfied that the findings of the AAT1 were correct and the decision under review will be affirmed.
BACKGROUND
The background to this application is set out chronologically in the Secretary’s Statement of Facts, Issues and Contentions and summarised below.[4]
[4] Respondent’s Statement of Facts, Issues and Contentions 17 April 2023, [3]-[4].
The Applicant was receiving Newstart Allowance as of February 2008. On 19 March 2010, he applied for Austudy as he was a full-time student at Open Training and Education (OTEN) studying a Certificate IV in Property Services. The course ran from 3 April 2010 to 5 December 2010. The Applicant was granted Austudy from 3 April 2010.[5]
[5] T-Documents, T12, p.173; T13, p.218.
On 29 October 2010, the Applicant advised the Agency that the course end date was altered from 5 December to 15 December 2010.[6]
[6] Ibid, T12, p.173.
On 20 December 2010, the Applicant advised he was studying a Diploma of Accounting for one year as a full-time student at OTEN and, that the course start date was 31 January 2011 with an end date of 16 December 2011.[7]
[7] Ibid.
On 2 September 2011, the Applicant contacted the Agency regarding portability of his Austudy. He advised the Agency that he had departed Australia to Thailand on 27 May 2011, he planned to return to Australia on 2 September 2011 and, that he would continue to satisfy the activity test. The Agency decided to pay the Applicant Austudy until 26 August 2011, which was 13 weeks after his departure.[8]
[8] Respondent’s Statement of Facts, Issues and Contentions 17 April 2023, Annexure A, p.31-32.
On 8 September 2011, the Applicant advised the Agency that he would be overseas for longer than previously stated because his wife was in hospital, and he had prostate surgery in China. He said he had been studying while overseas.[9]
[9] Ibid, Annexure B, p.33; T-Documents, T12, p.173.
On 23 December 2011, the Applicant submitted a Study details (MOD St) form in which he declared having completed the following tertiary courses:
Years Name of Institution Name of course 1998 NSW Business College Diplomas of Management 2009 Development Training College Belrose Building Certificate 4 2010 TAFE Real Estate Certificate 2011 TAFE Diplomas of Accounting [errors in original]
The Applicant also confirmed he was studying a 'Diplomas of Accounting' [sic] at TAFE on a full-time basis (25 hours per week). That course commenced on 15 May 2011, and the official end date for the course was 14 May 2012.[10]
[10] T-Documents, T4, p.110-115.
On 3 January 2012, the Applicant’s Austudy was suspended because he did not respond to a request by the Agency to provide transcripts of his academic record, official academic results, and evidence of undertaking full-time study at OTEN during semester 2, 2010.[11]
[11] Ibid, T12, p.172.
The Agency also sought the Applicant’s enrolment information for 2010 and 2011 directly from OTEN.[12] The information provided by OTEN confirmed that the Applicant had completed one assignment – on 27 April 2010 - after he was granted Austudy for full-time study at OTEN, and was not undertaking full-time study at any time during 2010 while receiving Austudy. Further, the Applicant was not enrolled in any study in 2011 prior to 16 May 2011. Although he enrolled in a Diploma of Accounting on 16 May 2011, he did not enrol for a full courseload and did not complete any study.[13]
[12] Ibid; T7, p.137.
[13] Ibid, T12, p.173.
On the basis of the information provided by OTEN, the Agency determined that the Applicant did not undertake a full-time study load for the period 3 April 2010 to 6 October 2011, had nil entitlement to Austudy for this period and, raised a debt of $17,643.38 (the first debt).[14]
[14] Ibid, p.173-174; T15, p.263.
On 24 January 2012, the Agency contacted the Applicant to discuss the debt. The Applicant advised he had studied at OTEN since early 2010 as a full-time student and was completing the minimum of 20 hours per week. He also advised that he was continuing his current course which he expected to complete by 30 June 2012.[15]
[15] Ibid.
On 2 July 2012, the Agency determined that the Applicant’s Austudy payment should be cancelled from 1 July 2012 under the progress rules, on the basis that the Applicant had reached his allowable study time on 30 June 2012.[16] This is because the minimum amount of time needed to complete a Diploma of Accounting with TAFE NSW is one year full-time and the allowable study time is the natural duration of the course.[17]
[16] Ibid, T8, p.144-148; T12, p.192.
[17] Ibid, T6, p.133.
On 9 July 2012, OTEN confirmed that the Applicant was enrolled in a Diploma of Accounting for the period 31 May 2012 to 31 May 2013. The Applicant was enrolled in 520 nominal hours, with 890 hours being the course nominal hours. At that date, he had completed 193.5 hours.[18]
[18] Ibid, T5, p.117.
On 2 August 2012, OTEN provided the Applicant’s progress reports for 2011 and 2012. The reports confirmed the Applicant enrolled in 410 hours of a Diploma of Accounting on 7 October 2011 and completed 145 hours as of 2 August 2012. He had enrolled in 560 hours of a Diploma of Accounting on 31 May 2012 and completed 250.5 hours as of 2 August 2012.[19]
[19] Ibid, T6, p.120-132.
On 15 February 2013, an ARO affirmed the decisions made to raise the first debt and cancel the Applicant’s Austudy payment and changed the cancellation date for the Austudy payment from 1 July 2012 to 6 November 2011.[20] The ARO found that:
·the Applicant was only enrolled for an approximate 48 percent load in the 2010 academic year, and most of the course hours were completed in the period 16 February 2010 to 2 April 2010, which was before the Applicant’s Austudy payments commenced;
·the Applicant was enrolled in a Diploma of Accounting for the period 16 May 2011 to 6 October 2011 but did not complete any course work; and consequently
·the Applicant was a part time student on and after 3 April 2010 to 6 October 2011; and
·the Applicant was undertaking part time study for the period 6 November 2011 to 26 July 2012 and, therefore, it was not possible to restore Austudy during this period.[21]
[20] Ibid, T8, p.144-149; T9, p.155; T12, p.192.
[21] Ibid, T8, p.146-148.
As the Applicant’s Austudy was cancelled from 6 November 2011, the Agency determined that the Applicant had nil entitlement to Austudy for the period 8 November 2011 to 30 June 2012. On 21 February 2013, a debt of $8,179.25 was raised (the second debt) for the period 8 November 2011 to 30 June 2012.[22]
[22] Ibid, T10, p.156-158.
On 26 October 2021, the Applicant lodged an application for review with the AAT1. On 16 May 2022, the AAT1 affirmed the decision under review, finding that the Applicant was not taking at least 75 percent of the normal study load for the course in which he was enrolled for Austudy purposes.[23]
[23] Ibid, T11, p.160-171; T2, p.3-7.
ISSUES
The issues to be determined by the Tribunal are:
(i)whether the Applicant was qualified for Austudy during the relevant period; and
(ii)whether the Applicant was paid in excess of his entitlement; and if so,
(iii)whether that overpayment was a debt due to the Commonwealth; and if so,
(iv)if there is any basis not to recover any or all of the debt.
LEGISLATION AND POLICY
The relevant law is contained in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act). Policy advice contained in the Guide to Social Security Law (the Guide) is also relevant. The Tribunal will take policy into account unless there are cogent reasons not to do so.
The Guide at Part 1.1.F.230 sets out that for the purposes of Austudy, undertaking full-time study is defined as at least 75 percent of the normal amount of full-time study for tertiary students.
Did the Applicant qualify for Austudy during the relevant period?
Central to the question of whether the Applicant qualified for Austudy during the relevant period is whether he was studying full-time. The Secretary contends that the Applicant was not undertaking full-time study throughout the relevant period as he was either not enrolled in a course of study, not completing any study, or studying less than 16 hours per week.[24]
[24] Respondent’s Statement of Facts, Issues and Contentions 17 April 2023, [5.17].
Section 568 of the Act outlines the general rules for qualification for an Austudy payment which, include that the person satisfies the ‘activity test’. Section 569 of the Act provides that a person satisfies the activity test if they are undertaking qualifying study as defined in section 569A of the Act:
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).
Section 569C provides that a person is a full-time student if they are undertaking at least three quarters of the normal amount of full-time study for the relevant course.
The ‘progress rules’ referred to in section 569A are set out in section 569H. A person satisfies the progress rules if on the day on which they enrolled in the course, the time already spent on the course, or on one or more other tertiary courses at the same level as that course, does not exceed the allowable study time for that course. The allowable study time is set out in section 569H(3) of the Act:
Allowable study time—full‑time students and 66% concessional study‑load students
(3) The allowable study time for a course undertaken by a full‑time student or a 66% concessional study‑load student is:
(a) if the minimum amount of time needed to complete the course as a full‑time student is one year or less—that minimum amount of time; or
(b) if the minimum amount of time needed to complete the course as a full‑time student is more than 1 year and:
(i) the student is enrolled, or intends to enrol, in a year‑long subject; or
(ii) the student’s further progress in the course depends on passing a whole year’s work in the course;
the minimum amount of time plus 1 year; or
(c) in any other case—the minimum amount of time needed to complete the course as a full‑time student plus half an academic year.
In relation to the Applicant’s study during the relevant period, the study details provided by OTEN confirm the following study-loads for the courses in which he was enrolled:[25]
[25] T-Documents, T12, p.173, 188.
Date Course Details Study Load 16 February 2010 to 27 April 2010 Certificate IV in Property Services Part-time, with only one assignment completed after the grant of Austudy 28 April 2010 to 15 May 2011 Nil No study completed 16 May 2011 to 6 October 2011 Diploma of Accounting No study completed 7 October 2011 to 30 June 2012 Diploma of Accounting Part-time
To be considered a full-time student for Austudy purposes, section 569C requires the Applicant undertake at least 75 percent of the normal amount of full-time study in respect of the course for that period. The Guide at 3.3.4.60 provides in relation to OTEN courses that:
To receive Austudy while studying through OTEN, students must be enrolled in an approved course and be undertaking an equivalent full-time study load (EFTSL). OTEN will generally only enrol students in 1 or 2 units at a time and the units are measured in hours.
OTEN considers students to be full-time if they are doing 16 hours of coursework a week.
…
OTEN provides a flexible course model which encourages students to complete courses at their own pace with no penalty for not completing work. However, if they are receiving Austudy, they should complete their study in the normal time it takes to complete the course.
In his Statement of Facts, Issues and Contentions, the Applicant confirms being overseas to attend his mother’s funeral and to manage affairs arising from her death between 14 February 2012 and April 2012.[26] It is not disputed that the Applicant’s mother died on 13 February 2012, or that he travelled to China to attend her funeral and manage her affairs.[27] The Applicant also claims he was in China for medical treatment not available in Australia between 27 June 2011 and 3 July 2011, and he was not required to meet the activity test ‘during this surgery’. He contends that during both periods he had a ‘reasonable excuse’ for reducing his study load to less than full-time.[28]
[26] Applicant’s Statement of Facts, Issues and Contentions 25 June 2023, p.23.
[27] Tribunal Book, p.130-131.
[28] Respondent’s Statement of Facts, Issues and Contentions 21 November 2023, [3]-[4].
The Applicant argues that if the period from February to April 2012 during which he had a reasonable excuse is taken into consideration, the OTEN records confirm he met the full-time study requirement from 7 October 2011 to 30 June 2012.[29] Part 3.3.4.20 of The Guide states that a person must intend to return to full-time study once their reasonable excuse circumstances have been resolved in order to remain qualified for Austudy as a student. As he was not studying full-time when he departed Australia, I am not content he had an intention to return to full-time study once his reasonable excuse circumstances resolved. Accordingly, I find that the reasonable excuse provisions did not apply to the Applicant in the relevant period.
[29] Applicant’s Response to the Respondent’s Supplementary Statement of Facts, Issues and Contentions 14 January 2024, [3]-[4].
I have considered the Agency’s calculations which are based on the OTEN records. I am satisfied the finding that the Applicant studied a full-time study load between 7 October 2011 to 5 November 2011 is a correct calculation that favours the Applicant.[30]
[30] T-Documents, T9, p.150-155.
At the AAT1, the Applicant gave evidence that a Certificate IV in Building and Construction he studied at the Building Institute of Training and Development (BIDT) in 2009 was in fact the course he was studying when he began receiving Austudy in 2010. The AAT1 wrote at [11]:
The course that [the Applicant] listed for 2009 was the course that he was studying when he began to receive austudy in 2010. This was a Certificate IV in Building and Construction that he was undertaking with the Building Institute of Training and Development. He said that he was also, at that time, undertaking a course for a real estate certificate (Certificate IV in Property Services). He said that, if he was taking two courses at the same time, he could choose which would be the relevant course for austudy. He said that he now wished to choose the building and construction certificate.[31]
[31] Ibid, T2, p.5-6.
The Applicant was unable to provide a transcript or any documents which could evidence his academic record or the hours that he studied the Certificate IV in Building and Construction. On 24 March 2023, the Secretary issued a request for information to the Australian Skills Quality Authority (ASQA) pursuant to section 196 of the Administration Act seeking the production of any student record relating to the Applicant’s claimed study of the Certificate IV in Building and Construction.[32]
[32] Respondent’s Supplementary Statement of Facts, Issues and Contentions 17 April 2023, Annexure D, p.68-70.
On 31 March 2023, the Secretary received a response from ASQA indicating that:
·the Applicant enrolled in a Certificate IV in Building and Construction (building) with the Building Institute of Training and Development on 3 November 2008;
·the Applicant completed two units by 23 April 2010; and
·no qualification was issued.[33]
[33] Ibid, [5.25]; Annexure E, p.71.
The information produced by ASQA does not provide an indication of the hours studied by the Applicant.
In a written submission, the Applicant contends that he studied between 8 April 2010 and 18 June 2011 at the BITD, and from 8 May 2011 to 30 June 2012 at TAFE NSW (OTEN).[34] The Applicant relies on a series of emails he exchanged with BITD administration in April and May 2010 to support his assertion regarding when he was studying at BITD.[35] He proposes using the TAFE NSW time allocation for the equivalent course ‘…to map the hours study for the BITD course’ as the BIDT had closed and there was no ‘public[ly] available information for the numbers of hours for the course from the Building Institute’.[36]
[34] Applicant’s Statement of Facts, Issues and Contentions 25 June 2023, p.1.
[35] Ibid, p.1-17.
[36] Ibid, p.19.
Applying this method, taking into account his completed units of study and units of study for which he was graded ‘non-competent’, the Applicant argues he was studying 75 percent of the normal amount of full-time study. He proposes that the time over which his studies were completed commenced 7 April 2010 and continued until 21 April 2011.[37]
[37] Ibid, p.20.
Further, the Applicant asserts that his study ‘establish[es] a pattern’ which demonstrates he ‘loves to develop’ himself through study. He contends he is a person who never stands still, and ‘is unlikely to do nothing between June 2010 to Feb[ruary] 2011’. Absent records ‘to establish the study activity’ being provided by BITD, the Applicant argues his record of personal development supports a finding he was engaged in full-time study during this period.[38]
[38] Ibid, p.34.
A finding that the Applicant met the activity test in relation to his study of the Certificate IV in Building and Construction requires accepting evidence of the Applicant which lacks credibility, is at times inconsistent, and is not sufficiently supported by documentary evidence. The information provided by ASQA does not include the hours of study completed by the Applicant but, is sufficient to support a finding the Applicant did not meet the activity test in relation to this study.
In conclusion, the academic and enrolment records before the Tribunal demonstrate the Applicant was either not enrolled in full-time study or did not satisfy the activity test during the relevant period. As such, he was not entitled to Austudy during the relevant period.
Austudy cancellation
Section 94 of the Social Security (Administration) Act 1999 (the Administration Act) provides for automatic cancellation of a social security payment in circumstances when a person who is given a notice under subsection 68(2) of the Act does not comply.
The Agency sent the Applicant multiple notices pursuant to section 68(2) of the Administration Act between 21 November 2011 and 4 June 2012 in relation to his Austudy payment. The notices stated that he must inform the Agency within 14 days if his study load changes, or he ceases study.[39]
[39] Respondent’s Statement of Facts, Issues and Contentions 17 April 2023, [3.10].
I am satisfied that the Applicant did not inform the Agency within 14 days that he was not undertaking 75 percent of a full-time study load in 2010, and that it was appropriate for the Agency to cancel his Austudy under subsection 94 of the Administration Act from 8 November 2011.
Does the Applicant owe a debt due to Commonwealth
Section 1223(1) of the Act provides that if a social security payment is made to a person and the person obtains the benefit of the payment, and the person 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 which, is taken to arise when the person obtains the benefit of the payment.
(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.
Section 1223(1AB) provides that:
(1AB) Without limiting by implication the circumstances to which paragraph (1)(b) applies apart from this subsection, a person who obtained the benefit of a social security payment is taken not to have been entitled to obtain the benefit if the payment should not have been made for any one or more of the following reasons:
(a) the payment was made to the person by mistake as a result of a computer error or an administrative error;
(b) the person for whose benefit the payment was intended to be made was not qualified to receive the payment;
(c) the payment was not payable;
(d) the payment was made as a result of a contravention of the social security law, a false statement or a misrepresentation;
…
During the relevant period the Applicant received Austudy payments when he had a nil entitlement to the payments as he was not undertaking full-time study. Therefore, subsections 1223(AB)(c) and (d) of the Act apply and the Austudy payments the Applicant received during both debt periods are debts owed to the Commonwealth.
Can the debt be waived or written off?
Section 1236(1) of the Act provides for circumstances in which a debt may be written off.
(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.
There is no evidence that the Applicant’s debt is irrecoverable at law or, that he has no capacity to repay the debt, particularly as he has already repaid $13,807.42 from the first debt.[40]
[40] T-Documents, T14, p.226.
Section 1237A provides for waiver of debts attributable to administrative error:
Administrative error
(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.
In order for the debt to be waived under 1237A of the Act the debt must be attributable solely to administrative error. There is no evidence that the debts in this matter were caused solely by administrative error.
Section 1237AAD provides for waiver of all or part of a debt in special circumstances:
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.
I note that each of the three elements in this section must be satisfied before the discretion to waive may be exercised.
The term ‘special circumstances’ is not defined in the Act but should take into account all of the person’s circumstances and would usually be based on a combination of factors.[41] The Secretary contends that the Applicant’s financial circumstances are not sufficiently unusual, uncommon or exceptional so as to make his case ‘special’.[42]
[41] Oberhardt v Secretary Department of Education, Employmentand Workplace Relations [2008] FCA 1923.
[42] Respondent’s Statement of Facts, Issues and Contentions 17 April 2023, [5.73].
At the hearing, the Applicant stated that he was dependent on his family trust for accommodation and living expenses. He told the Tribunal the trust owns the property in which he resides and he was currently on payment plans for utilities including gas, electricity and water. The Applicant detailed substantial debts for legal costs and an ATO activity statement confirms he owes $55,025.00 to the ATO.[43] The Applicant has provided a balance sheet detailing further debts including $47,000 to his local council and $6,000 to Revenue NSW.[44]
[43] Australian taxation Office activity statement, (undated).
[44] Balance Sheet, Family Court of Australia, Federal Circuit and Family Court of Australia, 11 September 2023, p.1.
The Applicant has identified significant debts but not his assets. Despite his debts, the Applicant was confident that his family trust would enable him to maintain his current accommodation and ensure he had sufficient income to meet his basic needs. Having regard to the Applicant’s circumstances, I am not satisfied that special circumstances exist that would warrant waiving any or all of the debt.
DECISION
For the reasons outlined above, the decision of the AAT1 dated 16 May 2022 is affirmed.
I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member.
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Associate
Dated: 16 April 2024
Date(s) of hearing: 5 February 2024 Applicant: In-person Solicitors for the Respondent: M. Gauci, Hunt & Hunt Lawyers
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