Michael Vo and Secretary, Department of Social Services

[2014] AATA 697

[2014] AATA 697  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/6706
Re	Michael Vo
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Ms G Ettinger, Senior Member
Date	25 September 2014
Place	Sydney

The Tribunal affirms the decision under review.

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

Ms G Ettinger, Senior Member

CATCHWORDS

Social Security - Youth Allowance - Whether Applicant satisfies activity test - Whether Applicant undertaking full-time study at the relevant time - Whether an overpayment of Youth Allowance - Whether debt should be waived - Decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth), ss 540, 541(1)(a), 1223, 1236, 1237A, 1237AAD

Social Security (Administration Act) 1999 (Cth), ss 68(2)

CASES

Angelakos and Secretary Department of Employment and Workplace Relations (2007) 44 AAR 436

Beadle and Director- General of Social Security (1984) 6 ALD 1
Groth and Secretary Department of Social Security (1995) FCA 1708

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS

Guide to Social Security Law

REASONS FOR DECISION

Ms G Ettinger, Senior Member

25 September 2014

SUMMARY

1. Mr Michael Vo is a 22 year old who received youth allowance while still at school, and later, while attending NSW TAFE (TAFE). In a data match, Centrelink found that Mr Vo had not been undertaking full-time study in Semester 2 of the 2010 academic year, and cancelled his youth allowance. Centrelink also found that the youth allowance paid to Mr Vo was a debt to the Commonwealth for the period 19 July 2010 to 5 December 2010, and had to be recovered. 

2. Mr Vo appealed to the Authorised Review Officer (ARO) who affirmed the decision. Mr Vo then appealed to the Social Security Appeals Tribunal (SSAT), which varied the amount of the debt, and found that for the relevant period, it was $3,770. Mr Vo who was assisted by his father, Mr Frank Vo, appealed to this Tribunal.

3. The Applicant’s main arguments were:

   ·that he was very young (17 years and seven months), when he was commenced studying at TAFE and was receiving youth allowance;

   ·that the information regarding full-time study was not clearly spelt out for students;

   ·that he had attended TAFE full-time, and that at times he may have arrived late at class and not been marked correctly on the roll;

   ·that the amount of the debt had been investigated and changed several times during the time he appealed against the raising of the overpayment; and

   ·that it had taken from 2010 to February 2012 for Centrelink to ask him to show cause.

4. I am satisfied from the evidence, in particular the TAFE attendance records before me, upon which I rely, that Mr Vo did not undertake full-time studies at TAFE in Semester 2, 2010. He has incurred a debt of youth allowance for the period 19 July 2010 to 5 December 2010. I explain in the paragraphs below why I do not exercise the discretion to write-off the debt, or waive it in full or in part. For the reasons which follow, the decision under review is affirmed.

   ISSUES FOR THE TRIBUNAL

5. The Tribunal must determine:

   ·whether the Applicant was undertaking full-time study during Semester 2 of the 2010 academic year;

   ·whether he was overpaid youth allowance of $3,770 during the period 19 July 2010 to 5 December 2010;

   ·whether he owes a debt to the Commonwealth; and if so,

   ·whether or not the debt can be written off or waived.

   LEGISLATION

6. Youth allowance is a payment available to young people who are undertaking full-time education, training or seeking work within a prescribed framework.

7. Section 540 of the Social Security Act 1991 (Cth) (the Act) sets out the circumstances in which a person can qualify for payment of youth allowance. Relevantly:

   540 Qualification for youth allowance-general rule

   Subject to this Subdivision, a person is qualified for a youth allowance in respect of a period if:

   (a) either of the following applies:

   (i) throughout the period the person satisfies the activity test (see Subdivision B) or is not required to satisfy the activity test (see Subdivision C);

8.          Section 541(1)(a) of the Act sets out the relevant part of the activity test in this matter:

541 Activity test

(1) Subject to section 541A and subsection (3) of this section, a person satisfies the activity test in respect of a period if:

(a) the person satisfies the Secretary that, throughout the period, the person is undertaking full-time study (see section 541B); or

1. Sections 541B of the Act sets out the definition of full-time study which may encompass a situation where the student undertakes 75% of the full-time study load. There are exceptions which do not apply in this case. The Guide to Social Security Law, (the Guide), provides that for purposes of youth allowance and other benefits, undertaking full-time study is defined as at least 75% of the normal amount of full-time study for tertiary students. Unless otherwise indicated, the Tribunal would normally consider itself subject to such Guides as they reflect Government policy (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

2. In summary, section 540 of the Act provides that a person is qualified for youth allowance if they, (among other things), satisfy the activity test. Section 541 provides that a person will satisfy the activity test if they are undertaking full-time study. Section 541B of the Act defines the term “undertaking full-time study” as being where a person “is undertaking in the particular study period (such as, for example, a semester) for which he or she is enrolled for the course for at least three-quarters of the normal amount of full-time study in respect of the course for that period.”

   WHETHER BTHE APPLICANT WAS UNDERTAKING FULL-TIME STUDY IN SEMESTER 2 OF THE 2010 ACADEMIC YEAR

3. As already stated above, Mr Vo was enrolled at TAFE in a full-time course in Semester 2, 2010, and receiving youth allowance. On 13 August 2010, Mr Vo was issued with a notice pursuant to section 68(2) of the Social Security (Administration) Act 1999 (Administration Act), advising that he was being paid youth allowance based on him being a full-time student at TAFE, and that he needed to advise the department within 14 days should he undertake less than 75% of the normal full-time load for his course or if his enrolment changed, or if he stopped studying any subjects. Following further investigation and a data match, Mr Vo was notified in December 2010 that he had not been a full-time student in Semester 2, 2010. A debt of $3,770 was raised in March 2012.

4. Mr Vo’s attendance records were in the T-documents before me. The SSAT also summarised his attendance at TAFE in the table which I have reproduced below:

   19 July 2010 to 17 September 2010

Subject	401A	5020A	4016A	304B	4003A	4014A	Total
Hours Studied	20	18	21	27	21	14	121
Possible Hours	29	32	27	32	32	18	170

20 September 2010 to 4 December 2010

Subject	4056A	4018A	406A	5012A	5032A	4012A	4049A	Total
Hours Studied	16	4	10	25	4	4	3	66
Possible Hours	29	18	32	45	32	32	27	130

1. The SSAT commented as follows:

   This means that in the first period Mr Vo completed 121 hours of a required 170 hours, which equates to 71% of the study load. In the second period, Mr Vo completed 66 of a required 130 hours, which equates to 50% of the study load. During both periods Mr Vo studied less than the required 75% of the study load, averaging 62% attendance over the entire semester.

2. The Respondent noted that the above calculations were correct with the exception of the 20 September 2010 – 4 December 2010 period in which the possible hours were 215 and not 130. This meant that Mr Vo completed 66 of the 215 hours in that period, being 30% of the full-time study load. The Respondent submitted that as the study load was less than full-time and less than 75% of the possible hours, Mr Vo was not studying full-time at TAFE in Semester 2 of 2010. He did not therefore satisfy the activity test pursuant to section 541(1)(a) of the Act, and was not qualified to receive youth allowance in that period, and incurred a legally recoverable debt to the Commonwealth pursuant to section 1223 of the Act.

3. I noted that Mr Vo’s academic record also indicated that he withdrew without penalty in eight of 13 subjects in Semester 2 of 2010. Mr Vo’s evidence was that he did not comprehend how that occurred in some of the cases, and that it was hard for a student to know exactly how many hours he had attended.

4. His main arguments have been listed above (at [3]). I am mindful of his argument that he was very young when he embarked on TAFE studies, but note that he knew about youth allowance and the requirement to attend TAFE full-time. I do not accept his argument that the information regarding full-time study was not clearly spelt out for students as there is evidence he was notified by TAFE regarding his studies.

5. I reject Mr Vo’s argument that he arrived late at class and was marked incorrectly on the roll. He was unable to substantiate that in any way.

6. I note Mr Vo’s sense of frustration that the amount of the debt had been investigated and changed several times during the time he appealed against the raising of the overpayment, and that it had taken from 2010 to February 2012 for Centrelink to ask him to show cause. I make no comment except to note that, from the evidence, the debt amount was recalculated several times.

7. I rely on the documentary evidence regarding attendance, and am satisfied that Mr Vo did not attend TAFE full-time in Semester 2 of 2010. I am satisfied that he therefore incurred a debt to the Commonwealth of $3,770 for the period 19 July 2010 – 5 December 2010.

   WHETHER THE DEBT SHOULD BE RECOVERED

   Write-Off

8. A debt to the Commonwealth must be repaid unless there are reasons to write it off (section 1236 of the Act), or waive all or part of it (section 1237AAD of the Act). Centrelink argued that none of the conditions apply for waiver, neither in respect of sole administrative error, nor special circumstances.

9. Write-off of a debt may also occur pursuant to section 1236 of the Act. That means the recovery is delayed for various reasons. Write-off may occur if:

   (a)the debt is irrecoverable at law; or

   (b)the debtor has no capacity to repay the debt; or

   (c)the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or

   (d)it is not cost effective for the Commonwealth to take action to recover the debt.

10. I am satisfied from the evidence that none of the conditions in section 1236 of the Act apply in Mr Vo’s situation, and that accordingly the debt cannot be written off.

    Waiver for administrative error pursuant to section 1237A of the Act

11. Section 1237A of the Act relevantly provides, in summary, that, (subject to section (1A) which has no application in this case), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received the payment or payments that gave rise to that proportion of the debt in good faith.

12. The evidence before me does not indicate that any part of the debt was caused by administrative error. Consequently, the debt cannot be waived pursuant to section 1237A of the Act.

    Waiver for special circumstances pursuant to section 1237AAD of the Act

13. Section 1237AAD of the Act gives the Tribunal a wide discretion to waive debts where there are ‘special circumstances’. The term ‘special circumstances’ is not defined in the legislation.  However, it has been extensively considered in case law.

14. In Beadle and Director- General of Social Security (1984) 6 ALD 1 the Court stated as follows:

    ... An expression such as ‘special circumstances’ is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special...

15. In Groth and Secretary Department of Social Security (1995) FCA 1708, the Federal Court stated as follows:

    ...The phrase ‘special circumstances’, it has been said, although imprecise is sufficiently understood not to require judicial gloss...it is sufficient to observe that it would require something to distinguish Mr Groth's case from others, to take it out of the usual or ordinary case. That was, I consider, the only enquiry to be undertaken in this case. It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary. The enquiry I have referred to would involve considering what would be the effect, if the provision in question or the principle of liability it creates, is applied...

16. More recently in Angelakos and Secretary Department of Employment and Workplace Relations (2007) 44 AAR 436, the Federal Court stated as follows:

    ... There is less overstatement if the words ‘unusual’ or ‘uncommon’ are emphasised. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case...

17. The Respondent submitted that there were no special circumstances in Mr Vo’s situation. He is in good health, not in financial hardship as he has a full-time job, owns his car outright, and has no significant debts. Accordingly, the Respondent contended that the Applicant's circumstances were not sufficiently special to make it desirable to exercise the discretion to waive all or part of the debt under section 1237AAD of the Act.

18. I have noted the above, and in coming to a decision, I am mindful of the case law and the Respondent’s submissions with regard to the exercise of the discretion in section 1237AAD, which I accept. On the evidence before me, I cannot find special circumstances, and I am accordingly unable to exercise the discretion in Mr Vo’s favour to waive part or all of the debt of $3,770 youth allowance for the period 19 July 2010 – 5 December 2010.

    DECISION

19. The Tribunal affirms the decision under review.

I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

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Associate

Dated 25 September 2014

Date of hearing	12 August 2014
Advocate for the Applicant	Mr Frank Vo (his father)
Solicitor for the Respondent	Mr Stefan Misrachi, Department of Human Services