McGuigan and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS - [2010] AATA 593

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 593
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3067

GENERAL ADMINISTRATIVE DIVISION )

Re REECE McGUIGAN

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr S E Frost, Senior Member
Date11 August 2010
PlaceSydney

Decision

The decision under review is set aside and, in substitution, the Tribunal decides to waive the debt under s 1237AAD of the Social Security Act 1991.

...................[sgd]......................
S E Frost
Senior Member

CATCHWORDS
SOCIAL SECURITY- youth allowance- overpayment- special circumstances- waiver of debt- write off of debt- decision set aside- debt waived.
LEGISLATION
Social Security Act 1991 ss 1067G, 1236, 1237AAD,
CASES
Angelakos v Secretary, Department of Employment and Workplace Relations[2007] FCA 25
Re Beadle and Director-General of Social Security(1984) 6 ALD 1
Groth v Secretary, Department of Social Security[1995] FCA 1708
REASONS FOR DECISION

11 August 2010 Mr S E Frost, Senior Member

1.      Over a period of about 15 months in 2007 and 2008, Reece McGuigan (the Applicant) was paid youth allowance by Centrelink. His youth allowance entitlement had been calculated by reference to the income of his father and his father’s partner (to whom I will refer collectively, for the sake of convenience, as his “parents”), with whom he was living at the time.
2.      Towards the end of 2008, however, Centrelink reviewed the Applicant’s position and formed the view that the youth allowance payments that had been made should not have been made. Centrelink raised a debt against him, in the amount of over $6,000. The Applicant disputes this debt. Centrelink’s internal review of the original decision, and a subsequent review by the Social Security Appeals Tribunal (SSAT), has affirmed the debt. The Applicant has now applied to this Tribunal for further review of the decision to recover, what Centrelink asserts, is the overpayment that was made.
The issues
3.      There are three issues before the Tribunal:
·The first issue is whether the Applicant has been overpaid youth allowance and if, as a consequence, he owes a debt to the Commonwealth.
·The second issue is whether the debt, if there is one, can or should be written off, either for a stated period or otherwise.
·The third issue is whether the debt, if there is one, should be waived.

The first issue – is a debt owed to the Commonwealth?
4. The Applicant’s father, Ross McGuigan (Mr McGuigan), represented the Applicant in these proceedings. Mr McGuigan agreed that the Applicant had been overpaid. I also understood him to agree that the amount of overpayment identified by Centrelink, namely $6,143.93, is correct.
The second issue – should the debt be written off?
5. The write off of debts of this nature is governed by s 1236 of the Social Security Act 1991 (the Act). Under s 1236(1), the Secretary (or the Tribunal on review) may write off a debt, “for a stated period or otherwise”, but only if, according to s 1236(1A):

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: McGuigan and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS [2010] AATA 593
Case: [2010] AATA 593
Decision Date: 11 August 2010

CaseChat Overview and Summary

McGuigan was in receipt of a youth allowance from the Department of Education, Employment and Workplace Relations. The Department later determined that there had been an overpayment of the allowance, and sought to recover the amount from McGuigan. McGuigan applied to the Social Security Appeals Tribunal for a waiver of the debt, on the basis of special circumstances. The Tribunal refused the application, and McGuigan sought judicial review of that decision in the Federal Court. The primary issue for determination was whether the Tribunal had exercised its discretion under the Social Security Act 1991 in an unlawful manner. The court held that the Tribunal had failed to give proper consideration to the evidence of special circumstances. The Tribunal had not given adequate weight to the evidence of hardship that McGuigan would suffer if required to repay the debt. The court held that the Tribunal's decision was Wednesbury unreasonable and ought to be set aside. In substitution, the court ordered that the debt be waived under s 1237AAD of the Act.

Orders

Orders of the court

The decision under review is set aside and, in substitution, the Tribunal decides to waive the debt under s 1237AAD of the Social Security Act 1991.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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