MARGARET SEEMOUNIAN and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2009] AATA 885

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 885

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/5975

GENERAL ADMINISTRATIVE DIVISION		)
Re		MARGARET SEEMOUNIAN

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr S E Frost, Senior Member

Date17 November 2009   

PlaceSydney

Decision The decision under review is affirmed.

..................[sgd]..........................

S E Frost
  Senior Member

CATCHWORDS

SOCIAL SECURITY – Allowances – Austudy – Overpayment – debt due to the Commonwealth – Whether debt should be waived – “special circumstances” – decision under review is affirmed.

Social Security Act 1991 (Cth) ss 1236, 1237A, 1237AAD

Re Ivovic and Director General of Social Services 3 ALN N95; [1981] AATA 57

REASONS FOR DECISION

17 November 2009 Mr S E Frost, Senior Member       

Introduction

1.Margaret Seemounian started receiving Austudy in August 2005 on the basis of her full-time enrolment in a “Postgraduate Certificate in Research Preparation (ELS)” course at Macquarie University.  The letters ELS stand for Environmental and Life Sciences.

2.Ms Seemounian mistakenly thought the course represented the first semester of a four-semester Masters program, leading eventually to the award of the degree of Master of Philosophy in Biological Sciences. On this basis she indicated to Centrelink that her studies were to commence from 1 August 2005 and end on 1 August 2007.  In fact, as she now accepts, the Postgraduate Certificate course was an entry requirement for the Masters program, which was a separate course.

3.Ms Seemounian was granted entry to the Masters program and commenced studying for her Master of Philosophy degree in February 2006.  However she failed to notify Centrelink of the change in her enrolment from the Postgraduate Certificate course to the Masters program. At the time, she thought that she was simply moving on to the second semester of a four-semester course.  In fact, she had ceased studying the Postgraduate Certificate course and had commenced a new course at Masters level which did not entitle her to Austudy support.

4.Ms Seemounian was paid Austudy for a further six months between February and July 2006, before Centrelink identified the error and determined that she had no entitlement to Austudy payments for this period.  Centrelink raised a debt of $3,803.68 for the amount overpaid during the period.

5.Ms Seemounian does not dispute that she has been overpaid, nor the amount of the overpayment.  However, she submits that Centrelink should bear some of the responsibility for the error and accordingly her debt should be waived, or at least reduced.

The issue

6.The issue is whether the whole or part of the debt accrued by Ms Seemounian to Centrelink should be waived as a matter of discretion. That will depend on whether there are, in terms of s 1237AAD(b) of the Social Security Act 1991 (the Act), “special circumstances (other than financial hardship alone) that make it desirable to waive” the debt.

7.I have confined the issue in this way because:

(a)as became clear during the hearing, none of the criteria under s 1236(1) of the Act are satisfied to allow write-off of the debt; and

(b)waiver of the debt under s 1237A of the Act is not available since no proportion of the debt is “attributable solely to an administrative error made by the Commonwealth”.

Consideration

8.The starting point is that people who have been overpaid social security benefits should normally be expected to pay back to the Commonwealth the amount overpaid. However, as s 1237AAD of the Act recognises, there will be cases where, because of “special circumstances”, it is not appropriate to insist on full reimbursement to the Commonwealth. The Tribunal said in Re Ivovic and Director General of Social Services (1981) 3 ALN N95; [1981] AATA 57 that, in order to trigger the exercise of the discretion to waive a debt:

… there must exist in the circumstances of the case, a factor or factors which justify the making of an exception in whole or in part to the principle of liability which the Act otherwise establishes. In the exercise of the discretion which s.115(4A) confers, the decision-maker must have regard to whether, by exercising the discretion in a particular case, he will be achieving or frustrating ends or objects which are conformable with the scope and purpose of the Social Services Act 1947: cf. Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J. Thus whilst keeping the dominant principle of s.115 in mind, he must nevertheless be prepared to respond to the special circumstances of any particular case by reason of which strict enforcement of the liability created by the section would be unjust, unreasonable or otherwise inappropriate.

9.The enactment of the current legislation in 1991 and the re-numbering of the sections have not changed that position.

10.Ms Seemounian’s financial circumstances at the time of the hearing were that:

(a)she was receiving newstart allowance at the rate of $453 per fortnight;

(b)she had no other sources of income, although she had done some tutoring at the University on a casual basis, two to three hours once or twice a week, until March 2009;

(c)she had credit card debts amounting to about $5,500; and

(d)she had applied to the Australian Prudential Regulation Authority for early release of some of her superannuation benefits.

11.She was living at the time with her father in a one-bedroom unit.  Clearly, this arrangement could only be a temporary one.

12.Ms Seemounian has a number of medical conditions.  She provided me with medical bills which show that she has had to pay some hundreds of dollars for consultations and for ultrasound procedures.  It is not clear how much, if at all, she has been reimbursed by Medicare for any of those expenses. It seems that she will require surgery at some stage.  She told the Tribunal that the surgery would cost between $5,000 and $7,000.  She provided me with statements from medical practitioners which indicated that she would require post-operative care for a few months in order to recover completely from the surgery.

13.Ms Seemounian’s circumstances are clearly difficult at the moment, but they are not particularly unusual.  In addition, I am not satisfied that it would be unjust, unreasonable or otherwise inappropriate to require her to repay to the Commonwealth the amounts of the benefit paid to her but to which she was not entitled. 

14.Ms Seemounian is a highly educated young woman who appears to have strong employment opportunities and the potential to earn a reasonable income in the future.  Provided the debt is recovered by modest fortnightly instalments (as is usually done in cases like this), it is neither harsh nor unreasonable to require her to repay the debt to the Commonwealth. 

15.In these circumstances the decision under review must be affirmed.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S E Frost, Senior Member

Signed:         ................[sgd] .....................................

Associate

Date of Hearing  7 September 2009
Date of Decision  17 November 2009
Appearance for the Applicant         Self-represented   
Appearance for the Respondent     Mr M Nicoletti, Centrelink Legal Services