Mirkac and Secretary, Department of Family and Community Services

[2005] AATA 925

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 925

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/772

GENERAL ADMINISTRATIVE DIVISION		)
Re		NADIA MIRKAC

Applicant

And SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member P McDermott

Date23 September 2005 

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

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

P McDermott
  Senior Member

CATCHWORDS

SOCIAL SECURITY - pensioner education supplement - failure to notify of change of circumstances - recovery of overpayment - administrative error - good faith - no special circumstances – decision affirmed

Social Security Act 1991 ss 1061PZG, 1067PZQ, 1237A, 1237AAD
Social Security (Administration and International Agreements)(Consequential Amendments) Act 1999
Social Security (Administration) Act 1999 ss 68, 244

REASONS FOR DECISION

23  September 2005 Senior Member P McDermott   

Introduction

1.      I have to decide whether Centrelink can recover the sum of $2,422.49 from Ms Nadia Mirkac. Centrelink contend that this sum represents the overpayment of Pensioner Education Supplement (“PES”) to Ms Mirkac from 30 March 2001 until 13 January 2004. 

2.      On 23 August 2004 the Social Security Appeals Tribunal affirmed a decision by the authorised review officer of Centrelink of 1 June 2004 that the PES debt be recovered from Ms Mirkac. Ms Mirkac seeks a review of this decision.

Confidentiality Of Proceedings

3.      At the commencement of the hearing of this application Ms Mirkac sought an order from me that the hearing be closed to the public.

4. I was not prepared to make such an order as I consider that the intention of Parliament as manifested in s 35 of the Administrative Appeals Tribunal Act 1975 is that a hearing of the Tribunal should ordinarily be public except where there are special circumstances. There is an obvious public interest in there being transparency of public administration.

5.      In view of the personal circumstances of Ms Mirkac, involving serious allegations of domestic violence, I made an order at the hearing restricting access to the registry file to the parties until further notice. I have also endeavoured to not include in these reasons any personal information about Ms Mirkac.

Issues

6.      This application raises a number of issues which I have to decide. I have to decide whether Ms Mirkac received PES at a higher rate than she was entitled. If so, I have to decide whether that excess is a debt which is due to the Commonwealth and whether the debt should be recovered.

Facts

7.      On 5 February 2001 Ms Mirkac lodged a claim form with Centrelink for PES for a course that she intended to study at the Southern Cross University [T5].

8.      To be entitled to receive PES a claimant must be in receipt of a social security income support payment. When she lodged her claim she was in receipt of parenting payment (single).

9.      On 6 February 2001 Centrelink advised Ms Mirkac that she would be granted PES at the rate of $62.40 per fortnight [T6]. She was advised of the necessity that she would need to maintain a sufficient workload in order to remain eligible to receive PES. She was also informed of the need to notify Centrelink within 14 days of varying her enrolment or upon ceasing her enrolment [T7].

Change of Enrolment 

10.     When Ms Mirkac lodged her claim form for PES she indicted that she would undertake 50-65% of the full-time study load for the course. She also indicated that she would be enrolled as a part-time student [T5]. She also produced her enrolment form which disclosed that she would undertake 2 subjects in each semester in 2001 [T4].

11.     On 30 March 2001 Ms Mirkac reduced her enrolment to one subject in each semester in 2001 [T9].  In 2002 she was likewise enrolled in one subject for each semester in 2002.

12.     Ms Mirkac obtained leave of absence from the University from 24 February 2003. She was enrolled in one subject in the second semester of 2003 and one subject in the first semester of 2004.

Need To Notify Centrelink Of Change Of Enrolment

13.     In various recipient notices Ms Mirkac has been informed of the need to notify Centrelink within 14 days of varying her enrolment or upon ceasing her enrolment.

14.     These recipient notices, which were issued between 6 February 2001 and 7 December 2003, are in the T Documents [T6, T8, T10, T 11, T 13, T21, T 26, and T 27].

15.     Centrelink do not have any record of these changes of enrolment. 

16.     Ms Mirkac elected to not give any evidence in this matter. There is consequently no evidence before me from Ms Mirkac that she notified Centrelink of any change of enrolment.

Entitlement To PES

17.     The entitlement of Ms Mirkac to PES is conferred under the Social Security Act 1991. The rate of payment of PES is prescribed by s 1061PZG of the Act.

18. While Ms Mirkac was undertaking 2 subjects in each semester in 2001 she had a 50% workload which entitled her to be paid the sum of $62.40 per fortnight. Upon changing her enrolment she became a sub-50% concessional study-load student (as defined by s 1061PZG(4)) and became entitled to receive the sum of $31.20 per fortnight

19.      Whilst Ms Mirkac was not enrolled at the University (as in Semester 1, 2003) she was not entitled to PES.

20.     I am satisfied, after a review of the material, that Ms Mirkac was overpaid PES to the extent of $2,422.49. Certainly at the hearing Ms Mirkac did not make any challenge to the basis on which this amount was assessed.

21.     I also comment that when the authorised review officer of Centrelink examined this matter, that officer reduced the amount that Ms Mirkac was liable to pay the Commonwealth.

Cause Of Overpayment

22.     I now have to examine the reason why Ms Mirkac has been overpaid PES.

23. The advocate who appeared for the Secretary quite properly conceded that Centrelink did make an administrative error in coding Ms Mirkac as a full-time student. However, I am satisfied that in this case the error was not solely caused by Centrelink for the purposes of s 1237A of the Act.

24.     The fact that there is no record on the file indicating that Ms Mirkac notified Centrelink of the various changes of enrolment is significant. It is also significant that Ms Mirkac has not given any evidence before me in which she indicates notifying Centrelink of any change of enrolment. If she had given evidence she would have been subject to cross-examination by the advocate who appeared for the Secretary.

25. I am also satisfied that for the purposes of s 1237A of the Act the payments which were made to Ms Mirkac are not received in good faith in the sense mentioned in the section as she has received all of the numerous letters from Centrelink in which she was informed of the need to notify Centrelink within 14 days of varying her enrolment or upon ceasing her enrolment. She tendered those recipient letters in the proceedings thus indicating that she has received them.

Special Circumstances

26. Ms Mirkac did not give any evidence or make any submission that special circumstances were present in this case. Consequently I am not able to allow the waiver of the debt under s 1237AAD of the Act.

Status Of Centrelink Notices

27.     During the hearing I became aware of the fact that the 8 notices in respect of the payment of PES to Ms Mirkac were stated to be recipient notices under s 1061PZQ of the Act. These 8 notices are in the T Documents [T6, T8, T10, T11, T13, T21, T 26, and T27].

28.     I then became aware that s 1061PZQ of the Act was repealed in 1999 by the Social Security (Administration and International Agreements)(Consequential Amendments) Act 1999 (Act No 192 of 1999). In view of the repeal of this provision I sought advice from the advocate who appeared for the Secretary as to the status of the notices.

29.     I raised the issue of the status of the notices with the advocate as I was concerned that Ms Mirkac, who is an unrepresented applicant, may have been provided with notices that did not require her to inform Centrelink of a change in circumstances.

30. The advocate who appeared for the Secretary in written submissions has helpfully outlined the legislative changes. I am now satisfied that s 244 of the Social Security (Administration) Act 1999 operates so that the corresponding provision to s 1061PZQ will operate. The corresponding provision to s 1061PZQ of the Act is s 68 of the Social Security (Administration) Act 1999.

31.     In these circumstances I am satisfied that the recipient notices imposed a duty on Ms Mirkac to inform Centrelink of a change in her circumstances.

Conclusion

32.     I am satisfied that Ms Mirkac is indebted to the Commonwealth in the sum of $2,422.49 for the overpayment of PES.

33.     I affirm the decision of the authorised review officer of Centrelink of 1 June 2004 as affirmed on 23 August 2004 the Social Security Appeals Tribunal.

Decision

34.     The decision under review is affirmed.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott

Signed:         Jeff Mills
  Legal Research Officer

Date/s of Hearing  22 July 2005
Date of Decision  23 September 2005      
The Applicant appeared in person
For the Respondent                  Ms S Oliver, Departmental Advocate