Menon and Secretary to the Department of Family and Community Ser Vices

[2003] AATA 1064

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1064

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2003/636

GENERAL  ADMINISTRATIVE DIVISION

Re:         SHALINA MENON

Applicant

And:       SECRETARY TO THE
  DEPARTMENT OF FAMILY
  AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       M.J. Carstairs, Member

Date:             9 October 2003

Place:            Melbourne

Decision:      The Tribunal affirms the decision under review.

(sgd) M.J. Carstairs

Member

SOCIAL SECURITY – overpayment – youth allowance – whether applicant owes a debt to Commonwealth – whether notional entitlement to alternate payment should be set-off – whether applicant should be deemed entitled to another payment – whether debt should be waived ‑ special circumstances

Social Security Act 1991 ss541(1), 541B(1), 1224, 1237AAD

Social Security (Administration) Act 1999 ss12, 15

Re Beadle and Director General of Social Security (1984) 6 ALD 1

Director-General of Social Services vHales (1983) 47 ALR 281

Groth v Secretary, Department of Social Security (1996) 40 ALD 541

Secretary Department of Family and Community Services and Valori (2002) 68 ALD 483

Moon and Secretary to the Department of Family and Community Services [2003] AATA 676

REASONS FOR DECISION

9 October 2003  M.J. Carstairs, Member

1.      This is an application by Shalina Marianne Menon (the applicant) for review of a decision made by the Social Security Appeals Tribunal (the SSAT) on 30 May 2003.  The SSAT varied a decision of a Centrelink delegate of the Secretary to the Department of Family and Community Services (the respondent), to recover an amount of youth allowance paid to the applicant during the period 15 April 1999 to 10 January 2000. 

2. At the hearing the applicant represented herself. Ms K. Paul, an advocate with Centrelink, represented the respondent. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act1975, as well as exhibits marked A1 and A2 for the applicant and R1 for the respondent. 

BACKGROUND

3.      The applicant was born on 1 February 1979.  She claimed youth allowance in March 1999.  In April 1999 she enrolled at the Australian Institute of Professional Counsellors (the Institute).  On and from 15 April 1999 her youth allowance was paid on the basis of her being a student, rather than a person looking for work. 

4.      Centrelink subsequently made enquiries with the Institute about the applicant’s student status.  As a result of its enquiries, Centrelink decided that the applicant had been overpaid $6070.63 for the period 15 April 1999 to 10 January 2000 as she was not studying in 1999.  The applicant sought review of the decision on 23 January 2003.  An authorised review officer affirmed the decision on 1 April 2003.  On 7 April 2003 the applicant sought review with the SSAT.  The SSAT decided that the applicant could be taken to be a full‑time student until 19 July 1999, as records showed that she attended a seminar.  However, after that date she was no longer a student.  As a result of its decision the amount of the debt was recalculated at  $4288.79.

5.      The applicant then sought review of the SSAT decision with this Tribunal on 16 June 2003.

EVIDENCE.

6.      A letter dated 22 March 2001 (T47) from the Manager of the Institute stated that the applicant enrolled on 15 April 1999 and completed a seminar on 8 July 1999, but submitted no assignments.  An Institute Course Outline set out the written and oral modules and seminars.  The applicant gave evidence that she did not receive that document.  However, she did receive a document (T42 p132) headed Your Seminar Timetable.  The applicant said that she believed that the course was self‑paced.

7.      A letter dated 13 June 2003 (T1 p4) from the applicant’s aunt, Ms C. Anthonysamy, stated that the applicant had a difficult and stressful time in 1999–2000 due to mental and physical abuse, but that she did not seek treatment until early 2000. 

8.      In a written report dated 27 November 2000 (T42) Dr P. Herath stated that the applicant attended his office on 13 April 2000 suffering from anxiety and depression, which had been present from January 2000.  In a written report dated 8 October 2003 (exhibit A1) Dr E. Farag stated that the applicant had counselling in October and November 1999; and the applicant's attendance at the Royal Women’s Hospital required further counselling in 2000.  The applicant tendered medical records from the Dandenong City Clinic (Exhibit A2) which covered the period 2000‑2001, a time when she required ongoing counselling and medical support.  The applicant said that her health has improved and she is now in good health.

9.      The applicant said that she accepted that she should not have received income support on the basis of being a student, but that she was entitled to receive some sort of payment as she had no income during the relevant period.  She acknowledged that she had been working in the second half of 1999 but said it was only for a short time and irregular hours.  The applicant told the Tribunal that she has secured employment in the past eighteen months and earns $36,000 annually.  She has since married.  Her husband is employed and earns $29,000 annually.  They have recently moved in to a new home.  The house has a mortgage, which they repay at $1005 per month.  They have two personal loan repayments totalling $520 per month.  They pay $300 per month on their car loan.  The applicant is repaying her social security debt at $100 per month and said that she is able to repay the debt, but it will be a bit of a burden.

CONSIDERATION OF THE ISSUES

10.     The provisions in the Social Security Act 1991 (the Act) dealing with youth allowance are at Part 2.11.  These provisions allow for the payment of youth allowance to young people until the age of twenty‑five (if in full‑time education) or until the age of twenty‑one (if not in full‑time education).  To qualify for youth allowance a person must satisfy the youth allowance activity test. Section 541(1) of the Act effectively provides that full‑time study is one basis upon which the youth allowance activity test is satisfied.   Section 541B defines full-time study:

541B(1) General.  For the purposes of this Act, a person is undertaking full-time 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 person:

(i)is undertaking in the particular study period (such as, for example, a semester) for which he or she is enrolled for the course; or

(ii)intends to undertake in the next study period for which he or she intends to enrol for the course;

either:

(iii)in a case to which subsection (1A) does not apply—at least three‑quarters of the normal amount of full-time study in respect of the course for that period (see subsections (2) to (4)); or

(iv)in a case to which subsection (1A) applies—at least two-thirds of the normal amount of full-time study in respect of the course for that period (see subsections (2) to (4)); and

(c)the course in question is an approved course of education or study (see subsection (5)); and

(d)in the Secretary’s opinion, the person is making satisfactory progress towards completing the course.

11. Part 5.1 of the Act, and s1224 in particular, deals with the overpayment of youth allowance. Before 1 July 2001, s1224 of the Act (since repealed) stated:

1224(1)  If:

(a)an amount has been paid to a recipient by way of a social security payment … and

(b)the amount was paid because the recipient or another person:

(i)made a false statement or a false representation; or

(ii)failed or omitted to comply with the provision of the social security law or this Act as in force immediately before 20 March 2000, the 1947 Act or the Social Security (Fares Allowance) Rules 1998;

the amount so paid is a debt due by the recipient to the Commonwealth.

12.     The applicant no longer disputed the debt.  She said that she now understood that she was not doing the required course load.  Her essential arguments were that she was entitled to some kind of social security support and her health at the time made it a very difficult period for her.

13. Part 5.1 of the Act also deals with non‑recovery of debts. Section1237AAD of the Act provides that in special circumstances a debt may be waived:

1237AAD  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 false representation; or

(ii)failing or omitting to comply with a provision of this 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.

14.     The applicant submitted that the issue of an alternative entitlement should be considered as a special circumstance in support of waiver of the debt.  She submitted that her difficult life and ill health in 1999 ‑2000, as well as the question of other entitlements, should be taken into account when considering the exercise of discretion for special circumstances.

15.     Ms Paul  submitted that with the new medical evidence, the applicant did not establish that there had been special circumstances..  Therefore, there was nothing to justify waiving the debt. The applicant was employed and was able to repay the debt on a negotiated basis, taking into account her other liabilities.

16.     Ms Paul referred the Tribunal to the cases of Secretary Department of Family and Community Services and Valori (2002) 68 ALD 483 and Moon and Secretary to the Department of Family and Community Services [2003] AATA 676 in regard to the issues in this case. On the authority of these cases, she submitted that the Tribunal could not be satisfied that the applicant qualified for any alternative payments.

17.     The Tribunal reached its decision taking into account the oral and written evidence and the submission of the parties. 

18.     Having considered all the evidence, the Tribunal finds that the applicant enrolled as a full‑time student at the Institute in April 1999.  However, as she was not undertaking the necessary workload she was not entitled to youth allowance during the relevant period (s541B(1)(d) of the Act). 

19. The applicant’s failure to advise Centrelink that she was not a student is a failure to comply with the requirements of the Act and means that a debt arose under s1224 of the Act, on and from 19 July 1999.

20.     The Tribunal rejects the applicant’s submission that she had a notional entitlement to another benefit.  As the Tribunal said in Moon, s15 of the Social Security Administration Act1999 (the Administration Act) does not support such an approach, as the section requires that the claim for youth allowance be an incorrect claim: (s15(1)(b) of the Administration Act). Section12(3) of the Administration Act, which deals with transfer between payments, requires that the person be qualified for another payment. The Tribunal is not satisfied that the applicant qualified for either newstart allowance or special benefit at any time during the relevant period. As stated in Moon, newstart allowance has a number of requirements for eligibility, which cannot be satisfied retrospectively.

21.     The special circumstances where the Tribunal can exercise the discretion to waive the debt (s1237AAD of the Act) are limited.  The circumstances must be unusual, uncommon or exceptional (Re Beadle and Director‑General of Social Security (1984) 6 ALD 1, Groth v Secretary, Department of Social Security (1996) 40 ALD 541).

22.     Although the applicant has given evidence that she had medical issues at the time that the overpayment occurred, she is now in better health and certainly more settled in life.  She has married; she has full‑time work and is able to maintain the level of repayment that is being sought by the respondent.  Her other financial commitments (repayment of the car loan and personal loans) are clearly discretionary.  While setting up a home can be a difficult and expensive time for young people, there is nothing that lifts the applicant’s circumstances to the level of unusualness that a favourable exercise of the discretion requires.  The Tribunal must balance the several factors that arise in such cases.  These include the fact that the applicant received public moneys to which she was not entitled, the circumstances in which the debt arose, the prospects of recovery and the applicant's general financial circumstances: Director‑General of Social Services vHales (1983) 47 ALR 281.

23.     The applicant cannot now say that the debt that she incurred should be reduced by an alternative benefit that she might have been entitled to, if she had applied for it and carried out its obligations.  While notional entitlements might appropriately be taken into account in a suitable case, after considering all relevant matters, the Tribunal is not satisfied that this is such a case.  Nor is the Tribunal satisfied that this case warrants the exercise of the special circumstances discretion. 

24.     For these reasons the Tribunal affirms the decision under review.

DECISION

25.     The Tribunal affirms the decision under review.

I certify that the twenty‑five [25] preceding paragraphs are a true copy of the reasons for the decision of:

M.J. Carstairs, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of hearing:  9 October 2003
Date of decision:  9 October 2003
Advocate for applicant:                Self‑represented

Advocate for respondent:            Ms K. Paul, Centrelink