Megalokonomos and Secretary, Department of Social Services (Social services second review)

[2016] AATA 799

Megalokonomos and Secretary, Department of Social Services (Social services second review) [2016] AATA 799 (12 October 2016)

Division	GENERAL DIVISION
File Number(s)	2016/0890
Re	Emmanouel MEGALOKONOMOS
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr P W Taylor SC, Senior Member
Date	12 October 2016
Place	Sydney

The decision under review is affirmed.

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

Mr P W Taylor SC, Senior Member

CATCHWORDS

SOCIAL SECURITY – overpayment of ABSTUDY – applicant indicated to Centrelink he was commencing full time study – applicant subsequently entered full time employment – applicant continued to receive ABSTUDY whilst in full time employment – applicant failed to notify Centrelink in change of circumstances and incurred a debt – whether applicant had disclosed change of circumstances at an earlier time – decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 1073D, 1073E

Student Assistance Act 1973 (Cth) ss 3, 38, 39, 39A, 40, 41, 43, 43B, 43C, 43D, 43E, 43F, 48, 49, 55A

Student Assistance Regulations 2003 (Cth) sch 1

SECONDARY MATERIALS

ABSTUDY Policy Manual paras 2.5, 9.1, 11.1, 13.1, 46.1, 61.1, 61.3, 73.1

Guide to Social Security Law para 4.2.8.50

REASONS FOR DECISION

Mr P W Taylor SC, Senior Member

12 October 2016

1. Mr Megalokonomos has received ABSTUDY payments periodically since about 2008.  In about mid 2014 he was undertaking a Certificate III Events course at the Sydney Institute of TAFE, and receiving ABSTUDY payments in relation to his participation in that course.  He continued to receive ABSTUDY for the period up to 23 March 2015. 

2. On 25 September 2015 Centrelink notified Mr Megalokonmos of an ABSTUDY overpayment (and a consequential $2,311.35 debt) as a result of his having “ceased studies on 28 January 2015”.  Despite Mr Megalokonomos’ complaint, that debt decision was adhered to in a 16 November 2015 internal review decision, and upheld in this Tribunal’s Social Services and Child Support Division (“SS&CSD”) reviewable decision of 27 January 2016.

   ABSTUDY ENTITLEMENT

3. ABSTUDY is a “current special educational assistance scheme” for the purposes of the Student Assistance Act 1973 (“StudAssAct”):- see ss 3 & 55A. The actual entitlement criteria for ABSTUDY scheme benefits are set out in the ABSTUDY Policy Manual (“APM”). Under the APM provisions ABSTUDY eligibility depends on a number of primary, general and specific criteria. The primary and general ABSTUDY criteria partially overlap. Relevantly they include (i) citizenship, (ii) Australian residence and (iii) enrolment in an approved course (or participation in an approved assessment activity or registered participation in an apprenticeship or traineeship):- ABSTUDY Policy Manual ¶9.1, 11.1 & 46.1. Where a person is eligible for ABSTUDY Living Allowance, the payment period will typically be the duration of the approved course: see APM ¶73.1.

   4.Where an ABSTUDY recipient’s circumstances change, the person’s entitlement depends on the altered circumstances.  The changed circumstances determine the person’s ongoing entitlement – irrespective of the time when the person reports, or ought to have reported, the change:- see APM ¶2.5 & 13.1.  (I note that, in this respect, one of the statements in the reporting letter referred to in paragraph 12(h) below appears to be inaccurate – if it is construed as stating that an overpayment debt may arise “if” (ie., only if) a person does not make a timely disclosure of a relevant change of circumstances.)

   INCOME CREDITS & WORKING CREDIT

4. ABSTUDY living allowance is subject to a personal income test: APM ¶61.1. However, ABSTUDY recipients can resort to the Student Income Bank. The Student Income Bank applies to any fortnight in which a person is an eligible student recipient. The Income Bank permits recipients to establish a credit balance when their actual income does not exceed the relevant income test threshold. This credit can then be used to offset the application of the income test to any “excess” income they earn in later fortnightly periods. The maximum Income Bank balance that can be accumulated for a full-time student (or concessional study-load) student is about 10,800 credits: Social Security Act 1991 s 1067G-L3 (as at March 2015); Guide to Social Security Law ¶4.2.8.50 Full-time Students – Personal Income Test, Limits & Student Income Bank.

5. Continuing students retain their income credit balance over vacation periods. Ordinarily all credits are annulled when a recipient student stops full time study: see Social Security Act 1991 1067L-E2 – “Step 1”; APM ¶61.3. However, if a person transfers from a student allowance, or ABSTUDY, to a benefit that has access to “working credits”, part of the income bank credit (up to a certain threshold limit – which is much less than the income credit maximum) can be transferred into working credit:- see Social Security Act 1991 s 1073E, and especially s 1073E(6).

6. Working credits apply to certain social security pensions or benefits, where the payment rate is worked out with regard to the income test module of a relevant rate calculator in the Social Security Act 1991: see Social Security Act 1991 s 1073D&E. However, apart from the possible transfer qualification referred to in the preceding paragraph, “income credits” in the Student Income Bank, and “working credits” that apply to other social security benefits, are mutually exclusive concepts: see Social Security Act 1991 s 1073D(d).

7. It is inherent in the concept of both “income credits” and “working credits” that they can affect only the payment rate of a relevant pension, benefit or allowance.  They cannot establish an independent basis for entitlement to any such payment.  That entitlement must be established independently, in accordance with the relevant benefit or payment eligibility.

   ABSTUDY DEBT PROVISIONS

8. Any payments that have been made under a “special educational assistance scheme” are defined as “overpayments” if, according to the scheme provisions, they should not have been paid:- StudAssAct 1973 s 3. Part 6 of the StudAssAct applies to overpayments under a “special educational assistance scheme” (amongst other things). The following propositions summarise the relevant Part 6 provisions, in so far as they apply to ABSTUDY, and are relevant to the present circumstances:-

   (a)any ABSTUDY overpayments constitute a recoverable debt to the Commonwealth:- StudAssAct ss 38 & 39

   (b)the Secretary of the Department may permit the debt to be repaid by instalments:- StudAssAct s 39A

   (c)in certain circumstances the unpaid debt balance may attract interest:- StudAssAct ss 40 & 41

   (d)the Secretary may write off certain classes of overpayment debt (ie. those that have been determined by the Minister and notified in the government Gazette):- StudAssAct s 43 (In so far as they are presently relevant those circumstances are where the recipient has no capacity to repay the debt.)

   (e)the Secretary must waive recovery of any portion of an overpayment debt that

   (i)is attributable solely to an administrative error made by the Commonwealth, and (a) the debtor received the payment in good faith, and (b) the debt was raised more than 6 weeks after either the first overpayment or the provision of information that caused the debt:- StudAssAct s 43B

   (ii)relates to a recipient having received a relevant custodial sentence that was increased because of the recipient’s failure to repay:- StudAssAct s 43C

   (iii)is less than $50 and whose recovery is not cost effective:- StudAssAct s 43D

   (iv)is the balance of the unpaid debt after the settlement of relevant civil proceedings (or dispute) involving the recipient:- StudAssAct s 43E(1), (2) & (4)-(6)

   (v)is the unpaid balance where (i) the debtor has repaid 80% of the debt and (ii) is otherwise unable to repay:- StudAssAct s 43E(3)

   (f)the Secretary may waive recovery of an overpayment debt if satisfied that

   (i)the debt did not result from the recipient’s knowing failure to comply with a StudAssAct provision

   (ii)there are special circumstances (other than financial hardship alone) that make waiver desirable

   (iii)waiver is more appropriate than writing off the debt:- StudAssAct s 43F.

9. For the purpose of the Secretary’s waiver discretion, a relevant provision of the StudAssAct (and perhaps the most relevant provision) is the obligation of a scheme payment recipient to notify the Department within 14 days of the happening of a “prescribed event”:- StudAssAct s 48. Failure to notify within the required time constitutes an offence, unless the person has a reasonable excuse:- StudAssAct s 49.

10. The “prescribed events” relevant to ABSTUDY are set out in Schedule 1 of the Student Assistance Regulations 2003. The particular “events” of apparent relevance to Mr Megalokonomos’ circumstances (together with their Schedule identifier) include the following:-

    (a)101:- failure to enrol, either at all or in a timely fashion, in the course to which the ABSTUDY amount relates

    (b)102:-  failure to begin the relevant course within the first 3 weeks of the first day it is offered

    (c)103 & 104:-  cancellation of enrolment in the course to which the amount relates.

    (d)105 & 106:- discontinuance of the course, or discontinuance of full time study in the course, to which the ABSTUDY amount relates.

    (e)116:- earning income different from the person’s last income estimate.

    THE UNDERLYING EVENTS

11. The material background events are, with one exception, uncontentious and can be conveniently related as follows:-

    (a)6 October 2014:- Mr Megalokonomos received a notice from Centrelink foreshadowing the end of his current course, on 30 November 2014, and requesting “information required for continuation of ABSTUDY”. 

    (b)6 October 2014:- The Centrelink notice

    (i)indicated that the required information could be provided either online or by completing and returning the printed notice

    (ii)reminded Mr Megalokonomos that he had to inform Centrelink if he changed his mind about continuing to study

    (iii)contained a standard acknowledgement that the recipient would disclose any change of circumstances within 14 days of their occurrence.

    (c)21 & 24 October 2014:- Mr Megalokonomos signed and submitted the completed information request form.  His completed response indicated that he would commence a full time Design course on 4 February 2015, and continue with that course until its scheduled end on 15 June 2015.

    (d)pre 27 January 2015:- Shortly before 27 January 2015, perhaps the day before, Mr Megalokonomos decided to accept an offer of full time employment.  About a week before he started work Mr Megalokonomos had decided not to enrol in the Design course.

    (e)27 January 2015:- Mr Megalokonomos started full time employment.

    (f)4 February 2015:-  Mr Megalokonomos did not enrol in or start the Design course, but continued to receive ABSTUDY whilst in full time employment.

    (g)11 February 2015:- Mr Megalokonomos contacted Centrelink and advised of a change in his circumstances.  The actual Centrelink record of the relevant telephone conversations on 11 February 2015 is incomplete – in the sense that it does not set out verbatim the actual content of the conversations.  However the following day Centrelink wrote to Mr Megalokonomos requiring him to report his employment income.  It is obvious, and uncontentious, therefore, that he had reported at least the fact of his employment. 

    (h)12 February 2015:- Centrelink sent Mr Megalokonomos a reporting statement, which required him to report his employment income “and other changes in circumstances”, as a precondition to receiving any future ABSTUDY payment, and nominating the fortnightly dates by which he was required to report.

    (i)15 February 2015:- Mr Megalokonomos accessed his Centrelink online account and requested a $500 advance against his future ABSTUDY entitlement.

    (j)18 February 2015:- Centrelink deposited the requested $500 advance to Mr Megalokonomos’ bank account.

    (k)25 March 2015:- Centrelink sent Mr Megalokonomos a letter informing him that his ABSTUDY entitlement had ceased, because he had exceeded the 27 January 2015 permissible end date for his Certificate III Events course.

    (l)25 March 2015:- Mr Megalokonomos contacted Centrelink and enquired about his ABSTUDY eligibility “as study has ceased and working”.  The date recorded as his cessation of study was 28 January 2015.  Centrelink advised Mr Megalokonomos that he had been overpaid, and had therefore incurred a debt of $2,311.35.

    (m)27 March 2015:- Centrelink wrote to Mr Megalokonomos requesting him to make contact and provide information relating to his ABSTUDY payment entitlement.

    (n)31 March 2015:-  Mr Megalokonomos, and his mother, both contacted Centrelink in response to the 27 March 2015 letter.  The note of these telephone conversations includes the details that Mr Megalokonomos had ceased study on 28 January 2015, had started employment on about 1 February 2015, and wished to challenge the debt that had been previously notified.

    (o)31 May 2015:- Mr Megalokonomos ended his employment.

    (p)2 June 2015:- Mr Megalokonomos notified Centrelink of his intention to claim newstart allowance.

    (q)18 June 2015:-  Mr Megalokonomos began to receive newstart.

    (r)25 September 2015:- Centrelink notified Mr Megalokonomos of the debt decision.

    (s)29 September 2015:- Mr Megalokonomos contacted Centrelink requesting a review of the debt decision.  He claimed he had been advised by Centrelink staff that he had income credits and was eligible to continue to receive ABSTUDY until the credits were depleted.

    (t)6 October 2015:- following the 25 September 2015 debt decision, Centrelink began to withhold instalments of $15 from Mr Megalokonomos’ fortnightly newstart payments.

    (u)16 November 2015:- Mr Megalokonomos spoke to the Centrelink review officer.  He claimed to have disclosed that he had stopped studying, that he had been told he just had to continue to report his income, and that he should have had working credits anyway.

    THE DEBT AMOUNT

12. The debt amount sought to be recovered from Mr Megalokonomos is the whole of the ABSTUDY payments attributable to the period after 27 January 2015.  Despite some initial obscurity about the correct derivation of the debt amount, the evidence ultimately revealed that it comprised the components, and reconciled with the ABSTUDY payments Mr Megalokonomos had received, as set out in the following Table.

Payment			Description	Amount
Date	Period End		Gross
11-Feb-15	9-Feb-15		Regular ABSTUDY	560.21
18-Feb-15	Advance	500.00
26-Feb-15	23-Feb-15		ABSTUDY – late statement	560.21
11-Mar-15	9-Mar-15		ABSTUDY – stimulus	560.21
26-Mar-15	23-Mar-15		ABSTUDY – late statement+otp	670.76
Total payments				2,851.39
Amounts excluded from debt
27-Jan-15		ABSTUDY – basic	40.02
18-Feb-15		Advance	500.00
Subtotal – excluded amounts				540.02
Debt amount claimed				2,311.38
Components of debt amount
ABSTUDY – basic payment	2,026.59
Energy supplement	34.56
Rent assistance	140.59
Income support bonus	109.70
Total debt amount components				2,311.44

1. The ABSTUDY eligibility criteria (see paragraph 3 above) would seem to indicate that, as a result of Mr Megalokonomos’ enrolment and participation in the Certificate III Events course, his ABSTUDY entitlement continued until the relevant, or permissible, course completion dates.  Centrelink’s internal records, and the 25 March 2015 letter (referred to in paragraph 12(k) above) suggest that Mr Megalokonomos’ relevant eligibility continued until 27 January 2015.

2. Centrelink has acted on that basis in calculating the debt amount.  That is so despite the possibility that Mr Megalokonomos’ entitlement could be regarded as having ended before 27 January 2015 – because of his decisions not to enrol in the Design course, and to undertake full time employment.  In the absence of detailed argument from either of the parties about the correct date on which Mr Megalokonomos’ ABSTUDY entitlement actually ceased I consider it appropriate to accept (as Centrelink did in its 25 March 2015 letter) that 27 January 2015 was the cut off date after which Mr Megalokonomos was first overpaid.

   THE MAIN FACTUAL DISPUTE – PARTIES CONTENTIONS

3. The exception to which I referred in paragraph 12 concerns the content of the information Mr Megalokonomos gave to Centrelink on 11 February 2015.  In his evidence at the hearing of these proceedings Mr Megalokonomos’ account of his contact with Centrelink on that date was as set out below.

   (a)He had gone to the Redfern Centrelink office and there spoke to someone at the office counter.  He said he wanted to report changes and enquire about working credit.  He said he disclosed that he had stopped studying and had started working full time.  He said he asked about “working credit” – how it worked and whether he was eligible.  He said he was told that he was eligible, and he referred to an amount of $15,000 – but added that the person he spoke to did not look up anything to confirm his working credit entitlement.  He says the person told him he should stay on the payment he was on (ie ABSTUDY), that he did not have to report any changed circumstances and that all he had to do was to report his employment income.

   (b)After that initial conversation Mr Megalokonomos left the office and got into his car.  He then began to doubt the accuracy of the information he had been given.  He thought the person he had spoken to at the Redfern office “did not seem interested and wanted to shoo us away”.  Desirous of confirming what he had been told, he decided to call Centrelink.  Later that afternoon he did telephone.  His recollection is that he said he was calling to notify his change of circumstances.  He said he had been to the Redfern office, disclosed that he had stopped studying and had started working, and that he had been told that he was eligible for working credits and still eligible for ABSTUDY.  He said he disclosed that he was no longer studying and that he was working full time.  He says he enquired again about working credit. 

   (c)He did not recall whether those telephone disclosures occurred in the course of one or two telephone calls.  He could only recall two specific conversations – one at the Redfern office and one later phone conversation.  But he had told both of the people to whom he spoke that he was no longer studying.

4. Centrelink, for its part, disputes that Mr Megalokonomos disclosed – at least prior to 25 March 2015 – the fact that he was no longer studying.  Centrelink says its position is circumstantially supported by

   (a)the fact that Mr Megalokonomos, both on his own admission and in the light of his response to the 6 October 2014 notice, knew that he was not entitled to receive ABSTUDY after he had ceased full time study.

   (b)the facts that (i) Mr Megalokonomos participated in two separate telephone conversations on 11 February 2015, and (ii) the notes of those telephone conversations do record that Mr Megalokonomos had disclosed a “change in earnings details” but not that he started full time work, nor that he had changed his mind about undertaking, and had not enrolled in, the Design course referred to in his October 2014 communication

   (c)an apparently explicit acknowledgement by Mr Megalokonomos, in Centrelink’s record of the second telephone conversation on 11 February 2015, that his call only related to the reporting of his income, and that there had been no change in his circumstances, that he had not already disclosed

   (d)the fact that Centrelink sent the 12 February 2015 letter, with its explicit statement about Mr Megalokonomos’ reporting obligations including both income and changed circumstances

   (e)the fact that Mr Megalokonomos continued to report his income – broadly as required by the 12 February 2015 letter

   (f)the content of Mr Megalokonomos’ specific disclosure of his study cessation on 25 March 2015, and the absence of any reference, in the Centrelink notes of the conversations on 25 and 31 March 2015, to any claims by Mr Megalokonomos that (i) he had previously disclosed his study cessation and full time work, or (ii) he had previously been provided with any assurance that his ABSTUDY entitlement would survive his full time employment and decision not to pursue the Design course.

   NO RELIABLE EVIDENCE OF STUDY CESSATION NOTIFICATION

1. Resolving the contentious content of the discussions on 11 February 2015 is not something that can be determined with certainty.  Part of the difficulty is the imprecision of Mr Megalokonomos recollection of events.  (He said in his evidence that the conversations took place a long time ago, he could not remember all the details, and it was unrealistic to expect him to be able to recall them.)  Another part of the difficulty is the different versions he has given from time to time.  A third difficulty is the implausibility of his version of events.  A fourth difficulty is the absence of any relevant record – either within Centrelink’s records or in any contemporaneous communication or complaint from Mr Megalokonomos – that corroborates his claim to have told Centrelink that he had started full time employment, and had decided not to undertake the Design course to which he had referred in his October 2014 response to Centrelink.

2. Notwithstanding the difficulties referred to in the preceding paragraph, the SS&CSD’s 8 February 2016 reasons for decision accepted that Mr Megalokonomos’ contact with Centrelink on 11 February 2015 did involve providing the information that he had ceased his TAFE course and was working.  The SS&CSD appears to have based that finding on two matters.  The first was what it regarded as Centrelink’s “concession” it was “possible” that Mr Megalokonomos had made the relevant disclosure in the first, but not the second, of two telephone conversations with Centrelink on 11 February 2015.  The second was Mr Megalokonomos’ explanation to the SS&CSD that he assumed he would be transferred to newstart allowance, once he indicated that he had ceased studying. 

3. The material provided to the SS&CSD did not include awareness of the events in October 2014, nor Mr Megalokonomos’ February 2012 request for an advance payment of ABSTUDY.  (That material was only provided in response to directions I made in the present review proceedings.)  Neither did the SS&CSD reasons for decision address either the details of Mr Megalokonomos’ newstart application, or the apparently different explanations Mr Megalokonomos had previously advanced.  In September 2015 he had told Centrelink’s initial debt decision maker that he had been told he had “income credits” and that was why he was still eligible to receive ABSTUDY.  In November 2015 he told Centrelink’s authorised review officer that he “should have had working credits anyway”.

4. It is not correct to regard Centrelink as ever having made the concession on which the SS&CSD appears to have acted.  (It is more correct to say that Mr Megalokonomos, in his 29 September 2015 conversation with Centrelink, had himself raised that possibility – to explain his recorded “no” answer in the second phone conversation.)  In any event, Centrelink made no such concession in the present review proceedings.

5. Disregarding, therefore, the significance of any such “concession” the contention about the extent of the disclosure Mr Megalokonomos made in the conversations on 11 February 2015 depends primarily on the quality of his claimed recollection of the events and conversations on that day.  In my opinion his claimed recollection of those events, particularly his claim that he appropriately disclosed that he was in full time employment and no longer pursuing any course of study, is not reliable.  In addition his claim that he was told by Centrelink officers that either “income” or “working” credits justified or permitted the continuation of his ABSTUDY payment is unreliable.  His claims are not reliable for the reasons I set out below.

6. First, the claims that Mr Megalokonmos’ made at the hearing – that (i) he made a relevant disclosure to, and received assurances from, a person at the counter in the Redfern office, and (ii) reported those assurances in the later telephone conversation – is not reflected in any contemporaneous record.  It does not appear in Centrelink’s conversation records of 11 February 2015, 25 March 2015, 31 March 2015 or 29 September 2015.  It does not appear in the Centrelink review officer’s account of his conversation with Mr Megalokonomos on 16 November 2015.  It is not specifically referred to in either of Mr Megalokonomos’ communications of 5 January and 9 June 2016. 

7. Notwithstanding the absence of any reference to those two matters in the documentary record, Mr Megalokonomos said in his oral evidence that he had reported the Redfern counter officer’s assurance in his telephone conversation later that day.  That evidence, and indeed his claim that he received any such assurance at the Redfern office, is inconsistent with accounts he gave to the Centrelink review officer (in November 2015) and to the earlier SS&CSD hearing (in January 2016).  Mr Megalokonomos told the review officer that at the Redfern office “he was told to go on the phones as they did not know about ABSTUDY”.  Mr Megalokonomos told the SS&CSD that “he was informed by inquiry counter staff that he should contact the abstudy telephone line”.  The inconsistency between Mr Megalokonomos’ evidence at the present hearing, and the two previous explanations, is significant.  It deprives me of any satisfaction about the reliability of his recollection about what occurred at the Redfern Centrelink office.

8. Second, at one stage of his oral evidence in the present review proceedings Mr Megalokonomos said that, in February 2015, he did not know that ABSTUDY was not payable if he was not studying full time.  This statement was rather contradicted by a statement he had made in a telephone conversation with a Centrelink officer on 29 September 2015.  In that conversation he had said that the very reason he had contacted Centrelink on 11 February 2015 was because he knew he had to contact Centrelink once he stopped studying.  When this apparent contradiction was pointed out to him in the present hearing, he denied making the statement recorded in the Centrelink note.  Then he added the qualification that if he had made such a statement what he had meant was that he believed he was still entitled to ABSTUDY, because he had “working credits”.  I do not accept this explanation.  As I note later (in paragraph 30) it appears to be inconsistent with the explanation Mr Megalokonomos gave to the SS&CSD.   I also note that it is an understanding fundamentally inconsistent with the concept underlying both “income” and “working” credit – see paragraph 8 above.

9. Thirdly, Mr Megalokonomos’ version of events (at the present hearing) was that several  Centrelink officers (i) gave him an assurance that he had applicable “working credit” and (ii) told him that he had to report his income, but not any change of circumstances.  He adhered to the latter view even when he was taken to the contents of the 12 February 2015 reporting letter, which explicitly set out precisely that reporting obligation, and in particular, relating to any a change in his study course.  This version of events is highly improbable.  There is no reference in the Centrelink conversation records to any discussion about “working credit” until the conversation of 25 March 2015.  Even then it is merely a record of the fact that Mr Megalokonomos was aware of the working credit scheme.  There is no record of any claim about “working credits” until the phone conversation on 29 September 2015.  Neither did Mr Megalokonomos tell the review officer (according to the notes of the conversation on 16 November 2015) that he had been given any assurance about “working credit” and their identification as the reason for the continuation of his ABSTUDY entitlement.  Neither does it appear – at least from the SS&CSD reasons for decision – that he made such a claim in the evidence he gave at that hearing.  The absence of a clear and consistent account from Mr Megalokonomos in relation to his claim about “working credit” significantly detracts from the reliability of his evidence.  That unreliability is then re-inforced by what I regard as the inherent incredibility of his version of events.  It is inherently unlikely, given both Centrelink’s computer based recording practices, the ABSTUDY eligibility criteria, and the basic concepts involved in “income” and “working” credit, that any competent Centrelink officer (let alone separate officers) would have failed to record his cessation of study disclosure, and would also have advised Mr Megalokonomos that his ABSTUDY entitlement would survive both his cessation of study and his commencement of full time employment.  It is even more unlikely, if an assurance of ABSTUDY entitlement had been given, because of some discussion about “working credit” that the conversation records would not contain at least some reference to such an assurance or discussion.

10. Fourthly, the Centrelink record of the two telephone conversations on 11 February 2015 highlights the flawed recollection Mr Megalokonomos has of the detail of those conversations.  He could only remember one telephone conversation – and yet it is clear that there were two telephone conversations.  In the second conversation note it is clear that Mr Megalokonomos spoke specifically about having employment income.  In answer to another question about whether there had been any other change in his circumstances, Mr Megalokonomos is recorded as having answered “no”.  When he was questioned about this answer in the present hearing he said he did not recall providing the “no” answer.  It is likely that the contemporaneous conversation note is accurate – in recording Mr Megalokonomos’ denial.  I accept that it is accurate.  If Mr Megalokonomos does not now recall giving that answer, his lack of recall detracts, in my view, from the reliability of his version of what occurred on 11 February 2015. 

11. Fifthly, I do not accept that Mr Megalokonomos’ contact with Centrelink on 25 March 2015 provides relevant evidence confirming his evidence about what had occurred in the earlier conversations with Centrelink on 11 February 2015.  Mr Megalokonomos said at the present hearing that the reason he had contacted Centrelink on 25 March 2015 was because, in the course of making enquiries about housing accommodation his mother had disclosed to the Department of Housing that he was still receiving ABSTUDY, even though he was in full time employment.  He said the Department of Housing representative had said that did not sound right.  That query, by an unidentified officer in another government agency is, according to Mr Megalokonomos, the reason he then contacted Centrelink again.

12. I am sceptical of, and do not accept, that explanation for Mr Megalokonomos’ contact with Centrelink on 25 March 2015.  His evidence was that he had telephoned Centrelink on 11 February 2015, made full disclosure at the Redfern office, and then, to overcome his own personal scepticism, he had confirmed that advice in a later telephone conversation, where he again made a full and complete disclosure.  If that evidence was correct, it is difficult to appreciate why the scepticism of some other government agency should have prompted Mr Megalokonomos to question the advice he asserts he had previously been given by Centrelink.  It is even more difficult to accept that the previous assurances Mr Megalokonomos claims he had been given, would not then have been a prominent feature of the conversation on 25 March 2015, and of the Centrelink notes of that conversation.  However, the reason why Mr Megalokonomos did contact Centrelink again on 25 March 2015 is ultimately a matter of limited significance.  The dispute about what occurred on 11 February 2015 is best resolved by the analysis I have set out earlier, in dealing with the evidence about the actual content of the relevant conversations on those two dates.

13. Finally, I note that in his evidence to the SS&CSD Mr Megalokonomos gave the explanation that “he assumed he would be transferred from ABSTUDY to newstart allowance after he gave the information to Centrelink, but instead he continued receiving ABSTUDY”.  This explanation is, to my mind, entirely contrary to the evidence Mr Megalokonomos gave in the present review proceedings. 

14. In addition, the plain facts of the matter are that (i) Mr Megalokonomos did not apply for newstart until June 2015, and (ii) there is no reference to newstart in any Centrelink conversation note prior to June 2015.  In the present hearing, Mr Megalokonomos claimed a belief that he would have been entitled to newstart after he started full time work in February 2015.  But he provided no basis for such a belief.  That fact, together with the absence of any reference to his asserted belief in any relevantly contemporaneous account, leave me unsatisfied that it was in fact a belief he had held.  Both of those considerations also leave me unsatisfied that any belief he may have had about newstart in fact played any role in the events that led to his continued receipt of ABSTUDY after 27 January 2015.

15. For the reasons I have set out above, I do not accept Mr Megalokonomos’ claim that, in his various conversations with Centrelink on 11 February 2015 he did disclose that he had begun full time employment and that he had ended his studies.  Most specifically, I do not accept that he disclosed he no longer intended to enrol in the Design course which he had previously informed Centrelink he proposed to commence on 4 February 2015.

    DEBT WAIVER

16. The SS&CSD found that the continuation of Mr Megalokonomos’ ABSTUDY payment after the disclosure it accepted he had made on 11 February 2015 was the result of an administrative error. However the SS&CSD said that Centrelink’s 12 February 2015 reporting notice letter “specifically referred to the payment of ABSTUDY being made on the basis of full-time study”. The SS&CSD said that Mr Megalokonomos was at fault in failing to correct “the error” and that this failure had contributed to the continuation of the ABSTUDY payments. On the basis of that finding, the SS&CSD concluded that it had no power to waive the debt under section 43B of the Student Assistance Act 1973. The SS&CSD also considered that Mr Megalokonomos’ continued receipt of ABSTUDY after 12 February 2015 was inconsistent with “good faith” – because he knew that his employment disentitled him from ABSTUDY.

17. The SS&CSD’s reasoning did not address the fact that, even on his own version of events, Mr Megalokonomos had not made the timely disclosure required by StudAssAct s 48. His fortnightly ABSTUDY payment appears to have been made on 11 February 2015, the same day that he claims to have made his afternoon telephone disclosure. Because of that timing, it would not be possible to be satisfied that “administrative error” was the sole reason for that part of the contentious debt.

18. Furthermore, the SS&CSD’s reasoning on the waiver issue proceeded on the basis that there was a contradiction between (i) Mr Megalokonomos’ evidence to the SS&CSD that he assumed his 11 February 2015 disclosures would result in his transfer from ABSTUDY to newstart, and (ii) the content of Centrelink’s 12 February 2015 reporting letter.  (That letter clearly stated that it related to ABSTUDY and required full time study.)  The SS&CSD thought that this inconsistency was, on Mr Megalokonomos’ version of events, an “error” that he should have appreciated and corrected.  His failure to do so precluded satisfaction that the continuation of his ABSTUDY payments was solely due to a Commonwealth administrative error. 

19. The SS&CSD’s reasoning on this aspect of the waiver issue would be unassailable if one accepted the premise that Mr Megalokonomos assumed he would be transferred to newstart rather than continue with ABSTUDY.  But that was not the evidence he gave in the present review proceedings.  Instead he insisted that he had fully disclosed his employment and study cessation on 11 February 2015, and had been assured that he was eligible to continue with ABSTUDY.

20. As I have already found, I differ from the SS&CSD finding on the question of disclosure.  I have found that Mr Megalokonomos’ evidence about those claimed disclosures is inconsistent, unreliable and improbable.  I am not satisfied that he did in fact disclose to Centrelink, in any of the conversations on or about 11 February 2015, that he had ended his study activities, and that he no longer intended to undertake the Design course referred to in his October 2014 response to Centrelink.  Because of that absence of satisfaction, I find that Mr Megalokonomos’ overpayment was not attributable solely to a Commonwealth administrative error.  In the absence of that kind of satisfaction there is no obligation to waive any part of the debt amount:- see paragraph 9(e)above.

21. Moreover, in addition to not being satisfied that Mr Megalokonomos made the study cessation disclosure he claims, I am satisfied, and I find, that the better view of the evidence is that he made no such disclosure.  That is the better view of the evidence because it is highly improbable that such a disclosure would not have been noted in the Centrelink conversation records, if it had in fact been made.  It would have been a highly material disclosure, and one that is inherently likely to have been regarded as notable (having regard to the ABSTUDY eligibility criteria).  In the light of that finding, I am not satisfied that the contentious $2,311 debt did not result from Mr Megalokonomos’ knowing failure to comply with his change notification obligations.  Mr Megalokonomos knew that he had such an obligation.

22. In the light of the findings I have made, there is neither an obligation nor a power, consistent with the relevant provisions of the StudAssAct, to waive any part of the debt. It would be artificial, in those circumstances to embark on a hypothetical alternative exercise of enquiring whether, nevertheless, there were “special circumstances” that made it appropriate to exercise the debt waiver power in StudAssAct s 43F (see paragraph 99(f) above). That possibility would depend partly on Mr Megalokonomos’ personal circumstances. But he has not proffered any evidence, nor is any basis otherwise apparent from the material, that could lead to a conclusion that the present matter involved special circumstances. On the findings I have made, Mr Megalokonomos has received ABSTUDY payments to which he was not entitled. He was substantially, indeed wholly at fault, in those payments being made (because his disclosure was both tardy and incomplete). There is nothing unreasonable, inappropriate or unacceptable in his being required to repay the overpayment amount he has received.

    NO WRITE OFF

23. I noted earlier that after October 2015 instalment debt repayment deductions were made from Mr Megalokonomos’ newstart payments.  The SS&CSD reasons for decision of 8 February 2016 recorded that Mr Megalokonomos was, by that time, in gainful employment.  Those matters would both tend to suggest that, whatever financial hardship might be involved, Mr Megalokonomos has the capacity to repay the overpayment debt.  No evidence at the review hearing contradicted that suggestion.  And in those circumstances I am not satisfied that there is any basis for writing off the contentious debt.

    CONCLUSION

24. The decision under review is affirmed.

I certify that the preceding 41 (forty -one) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member

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

Associate

Dated 12 October 2016

Date(s) of hearing	7 July 2016 and 12 September 2016
Date final submissions received	14 September 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services