Martinsen and Secretary, Department of Family and Community Services

[2005] AATA 932

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 932

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2004/230

GENERAL ADMINISTRATIVE DIVISION		)
Re		JEFFREY MARTINSEN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date27 September 2005

PlaceBrisbane

Decision The decision under review is varied. A debt was properly raised against the applicant in the amount of $1419.28. The recoverable portion of the debt is $903.43. That debt should be recovered from the applicant.

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

SENIOR MEMBER

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – Austudy – applicant not undertaking full-time study during relevant period – applicant not classified as a full-time student – overpayment has been made – overpayment should be recovered – debt properly raised – part of debt waived solely due to administrative error.

Social Security Act 1991 (Cth) ss 569A, 569C, 569E, 1223,1237A, 1237AAD

Social Security (Administration) Act 1999 (Cth) s 13

Pledger v Secretary, Department of Family and Community Services [2002] FCA 1576; (2003) 5(7) SSR 88

REASONS FOR DECISION

27 September 2005 Senior Member B J McCabe

introduction

1.      Mr Jeffrey Martinsen was a university student in receipt of Austudy allowance. A dispute has arisen as to whether he was entitled to be paid Austudy given changes that occurred in his enrolment. The respondent says Mr Martinsen received money to which he was not entitled. A debt has been raised against the applicant. Mr Martinsen says he is not indebted and should not have to repay the money.

the material before the tribunal

2. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents). The respondent tendered in evidence a supplementary bundle of T-Documents (exhibit 2). The applicant provided the Tribunal with documentation supporting his claim headed “JDM Documents” (exhibit 3).

3.      The applicant represented himself at the hearing before the Tribunal. Mr Howard appeared on behalf of the Secretary, Department of Family and Community Services.

4.      The applicant gave evidence at the hearing on his own behalf. Both parties were given the opportunity to lodge written submissions after the hearing. The respondent did so.

The factual background

5.      Mr Martinsen was studying a Bachelor of Laws course at the Queensland University of Technology (QUT) during the relevant period. The normal full-time study load at QUT for the applicant’s course is four units per semester. He increased his subject enrolment from four units to six units in the relevant period. There was some confusion over his entitlement to credit from courses he had previously studied at James Cook University. A university official cancelled the applicant’s enrolment in five of the six subjects as a result of the confusion. The applicant challenged the university’s decision to cancel part of his enrolment. After some delay, the university reinstated his enrolment in three subject units in semester one of 2003. He says the confusion and stress and the missed classes put him at a disadvantage and on 29 April 2003 he withdrew from two of the units (T documents at 46).

6.      In correspondence with Centrelink, a delegate of the QUT Student Centre noted the applicant’s enrolment in the course was discontinued as of 25 July 2003 (T documents at 46).

7.      The applicant advised Centrelink he was no longer studying on 29 July 2003 (Supplementary T documents at 57). He also sought Newstart allowance as an unemployed person on that date. His claim form was not processed until 15 August 2003. He began receiving Newstart allowance from 20 August. There does not seem to be any reason to doubt he would have been entitled to receive Newstart (which was paid at a higher rate than Austudy) from the time he left full-time study.

the amount of the debt

8.      The respondent originally raised a debt in the amount of $715.92 being the amount of payments of Austudy made during the period 29 April to 24 June 2003. An Authorised Review Officer determined that the amount of the overpayment was actually $1419.28 for the period 29 April to 19 August 2003 – although the amount of Newstart allowance the applicant would have received in the same period if his application had been dealt with more expeditiously was offset against the debt. The ARO decided the amount of the debt was $903.43. The decision to raise the debt was varied by the Social Security Appeals Tribunal (SSAT). The SSAT concluded a debt in the amount of $1180.64 was properly raised in respect of payments made in the period 29 April 2003 to 1 August 2003.

9.      The respondent now says the sum of the overpayment is $1419.28. This figure comprises $1180.64 for the period from 29 April 2003 to 31 July 2003 and $238.34 for the period 1 August 2003 to 19 August 2003. It has not offset any Newstart payments that would have been received during the same period against the amount of the debt.

The legislation

10.     A person is only eligible to receive Austudy payments if he or she is able to satisfy the activity test: s 568(a) of the Social Security Act 1991(Cth) (the Act). A person satisfies the activity test applicable during a period if the person is undertaking qualifying study: s 569(1). A person will be taken to be undertaking qualifying study if the person is enrolled in a course of education at an educational institution: s 569A(a). Section 569A also requires:

…

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

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

(d) the person satisfies the progress rules …

11.     There is no doubt that the law program at QUT is an approved course of education or study. The real issue in this case is whether the applicant was a full-time student. Section 569C defines that expression as follows:

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.

12.     The respondent says the applicant was not enrolled in at least three quarters of the normal load for a full-time student in semester one of 2003 after 29 April 2003.  I accept he was undertaking at least three quarters of the normal amount of full-time study prior to that time. An entitlement to Austudy clearly existed up until that point. This entitlement ceased on 29 April 2003 when the applicant reduced his study load to one subject.

13.     At the hearing Mr Martinsen submitted he remained a full–time student throughout semester one 2003 despite the fact he was only studying one subject after 29 April. He argued that s 569F of the Act meant he should be classified as a full-time student for the entire semester. Section 569F states:

A person is taken to be undertaking full-time study or a concessional study-load (as the case may be) in respect of a course during the period (the relevant period ):

(a)     starting on the first day of classes in a study period; and
(b)     ending on the Friday of the second week of classes in the study period;

if the person is enrolled in the course and undertakes study in respect of the course on at least one day in the relevant period.

14.     The applicant is wrong. The section takes account of the fact that not every student commences study on the first day of the semester. It permits students who enrol within the first two weeks and actually commence studying before the end of that period to be deemed to be studying from the beginning of the semester.  The provision does not affect the requirement that the student remain enrolled throughout the semester. It is a deeming provision with limited application. This interpretation of the Act is bolstered by the Explanatory Memorandum to the Social Security Legislation Amendment (Youth Allowance Consequential and Related Measures) Bill 1998.

15. The applicant was not entitled to Austudy for the period of time he was not a full-time student. Section 1223(1) of the Act states that if a benefit is paid to a person who was not entitled to the benefit for any reason, then the amount paid constitutes a debt. The applicant has clearly incurred a debt under this provision.

Recovery of the debt and waiver

16. The SSAT decided the payments made after 1 August 2003 were ‘in substance’ Newstart allowance. The respondent disagrees and claims the payments were in fact payments of Austudy to which the applicant had no entitlement. I think the respondent is right: the respondent was not entitled to receive any of the Austudy payments received in respect of the period after 29 April. However I also acknowledge the applicant became entitled to Newstart allowance as of 1 August 2003 after he contacted Centrelink and told them of his new circumstances: see s 13 Social Security (Administration) Act 1999 (Cth). Centrelink should have cancelled his Austudy and commenced paying him Newstart at that point.

17.     Section 1237A of the Act says the respondent must waive part of a debt ‘attributed solely to an administrative error’ if ‘the debtor received in good faith the payment or payments’. The respondent has conceded the portion of the debt raised in respect of the period after 29 July 2003 was solely the result of administrative error. The respondent also accepts the payments were received in good faith. Despite the applicant’s knowledge his entitlement to Austudy had ceased, he had a genuine belief he was entitled to the payments he received albeit in the form of Newstart allowance: see Pledger v Secretary, Department of Family and Community Services [2002] FCA 1576. That concession was properly made.

18.     The recovery of payments of Austudy received by the applicant after 29 July 2003 must be waived solely due to administrative error.

19.     The respondent has also conceded that section 1237AAD should be applied to waive a further amount of the debt in this case. The respondent submitted “the applicant has been placed in a worse position than he would have been in had his claim for Newstart been promptly processed”. The applicant was wrongly paid Austudy payments in the period 1 August 2003 – 19 August 2003 when he was actually entitled to Newstart allowance. The Austudy payments were at a lesser rate than Newstart allowance. The respondent claims an amount equivalent to the difference between the Newstart allowance the applicant should have received and the Austudy payments actually received should be waived. I agree.

20.     The application of ss 1237A and 1237AAD reduce the recoverable amount of the debt to $903.43. The calculation of this figure is detailed in the decision of the Authorised Review Officer dated 22 January 2004 (T documents at 61).

21.     After hearing the applicant on the point I was not satisfied there were any additional special circumstances that made the applicant’s case markedly different from the usual run of cases. The balance of the debt should therefore be recovered.

Conclusion

22.     The decision under review is varied. A debt of Austudy in the sum of $1419.28 for the period 29 April 2003 to 19 August 2003 exists. Due to the administrative error of the respondent (s 1237A) the recoverable portion of the debt is reduced to $903.43, with the balance being waived.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate:      Sam J Appleton

Date of Hearing  14 June 2005
Date of Decision  27 September 2005
The applicant appeared in person.
The respondent was represented by Mr Howard, departmental advocate.