Morgan and Secretary, Department of Education, Science and Traini Ng

[2003] AATA 391

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 391

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No D2002/34

GENERAL ADMINISTRATIVE  DIVISION		)
Re		JAMES MORGAN

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, SCIENCE & TRAINING

Respondent

DECISION

Tribunal Deputy President Don Muller

Date30 April 2003  

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and in substitution decides to waive the right of the Commonwealth to recover a debt of $1603.93 owed by James Morgan.

............Signed..................................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

SOCIAL SECURITY – ABSTUDY – enrolment blocked for failure to pay a debt owed to the educational institution – overpayment of allowance – waiver of debt – whether or not special circumstances exist

Student Assistance Act 1973: s43F

REASONS FOR DECISION

Deputy President Don Muller       

1.      This is an application by James Morgan (“the Applicant”) to review a decision of the Social Security Appeals Tribunal (“SSAT”) dated 20 June 2002, to affirm Centrelink’s decision to raise and recover ABSTUDY overpayments of $1603.93 from the Applicant for the period 5 March 2001 to 3 May 2001.

2.      At the hearing Mr. Morgan represented himself and the Respondent was represented by Mr. Ashley Heath from the Australian Government Solicitor.

3.      The debt is said by the Respondent to have arisen because Mr. Morgan received ABSTUDY payments during Semester 1 in the year 2001, whilst not being enrolled in an approved course at an educational institution.

4.      Mr. Morgan’s application for enrolment in the course for a Bachelor of Applied Science (Natural and Cultural Resource Management) at the Batchelor Institute of Indigenous Tertiary Education (BIITE) became subject to his returning to BIITE a pair of binoculars that he had borrowed in the year 2000.  The due date for the return of the binoculars was on or before 31 March 2001.  He did not return the binoculars by the due date and his enrolment was consequently cancelled.  He continued in the course in the mistaken belief that he was properly enrolled.

5.      There is no dispute about the following facts and the Tribunal finds:

(a)On 2 February 2001 the BIITE offered Mr. Morgan a place to study a Bachelor of Applied Science (Natural and Cultural Resource Management) (“the Course”).

(b)On 12 February 2001 Mr. Morgan made a claim for ABSTUDY payments and indicated to Centrelink that he would be commencing the Course on 5 March 2001.  He also showed Centrelink the letter from BIITE dated 2 February 2001.

(c)Mr. Morgan’s claim for ABSTUDY payment was granted on 5 March 2001 and a letter detailing his payments and his obligations for ABSTUDY payments was sent to him at his Peppimenarti Community address.  This letter was returned to Centrelink unclaimed on 2 April 2001.

(d)On 5 March 2001, BIITE wrote to Mr. Morgan to inform him that:

(i)He had not returned binoculars borrowed by him during Semester 2 of 2000;

(ii)He had now incurred a debt of $155.00 for the cost of binoculars;  and

(iii)BIITE policy was:

“Any student with a debt to the Institute will not be resulted or allowed to graduate.  In the event that the debt is not settled or a secure method of payment arranged by the final re-enrolment date, that student will not be allowed to re-enrol.”

(e)Mr. Morgan could not find the binoculars.  He thought that his uncle may have borrowed them.

(f)On 12 March 2001 Mr. Morgan received his first ABSTUDY payment.

(g)The final enrolment date for Semester 1, 2001 at BIITE was 31 March 2001.

(h)Mr. Morgan thought that he was enrolled and began a period of “bird watching” as part of the Course.

(i)On 18 April 2001, Mr. Morgan entered into a written agreement with BIITE to allow for deductions from his bank account for the period 23 April 2001 to 16 July 2001, to pay for the binoculars.  It was intended that the deductions would be made from his ABSTUDY payments.  In fact his ABSTUDY payments went into a different bank account and no deductions were made.

(j)On 18 April 2001, BIITE informed Mr. Morgan that he was not enrolled in the Course.

(k)On 23 April 2001, Mr. Morgan informed Centrelink that he was not enrolled in the Course for Semester 1, 2001 due to the outstanding debt of the binoculars.

(l)Centrelink suspended Mr. Morgan’s ABSTUDY payments on 23 April 2001.

(m)Centrelink raised a debt of $1603.93 on 9 May 2001 for failure to start the Course.

(n)On 5 June 2001, Mr. Morgan telephoned Centrelink regarding the overpayment debt and made the following points:

(i)He should not have to pay the debt because it arose due to the fault of the lecturers at BIITE;

(ii)BIITE would not enrol him because of the problem with the binoculars;

(iii)He had tried to make arrangements to pay off the debt relating to the binoculars but the lecturers were “always away on trips and were never around”.

(o)On 21 July 2001, Mr. Morgan found the binoculars and returned them to BIITE.

(p)On 7 July 2001, Centrelink recalculated the debt to $1809.33.

(q)On 6 December 2001 an Authorised Review Officer reviewed the debt of $1809.33 and considered that the incidentals allowance had been incorrectly applied and the debt was reduced to $1603.93.

6.      There is no dispute that the relevant legislation contained in the Student Assistance Act 1973 (the Act) requires a recipient of ABSTUDY to be properly enrolled in an acceptable course at a recognised institution.  There is also no dispute that in the circumstances of this case Mr. Morgan received ABSTUDY payments to which he was not entitled and constitutes a debt owed by Mr. Morgan to the Commonwealth.  The question arises as to whether or not the debt should be recovered from Mr. Morgan.

7.      Under section 43A of the Act, the Commonwealth may waive its right to recover the whole or part of a debt if any of the circumstances in section 43B, 43C, 43D, 43E and 43F apply.

8.      In this case the only circumstances that may apply to this debt arise in section 43F of the Act which states:

“43F  Waiver in special circumstances

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 a false representation;  or

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

9.      The Tribunal is satisfied that Mr. Morgan thought that he was enrolled in the Course until he was told that he was not on 18 April 2001.

10.     The Tribunal is also satisfied that Mr. Morgan told Centrelink that he was not enrolled at BIITE, within a matter of a few days of receiving the advice from BIITE.

11.     The Tribunal finds that the Applicant did not knowingly make a false statement to Centrelink nor did he knowingly fail to comply with the provisions of the Act.

12.     The only matter for the Tribunal’s consideration is whether there are special circumstances that make it desirable to waive the right of the Commonwealth to recover the debt, within the meaning of those terms in s.43F(b) of the Act.

13.     The Tribunal is satisfied that at no time relevant to this matter did Mr. Morgan understand that if he did not produce the binoculars by 31 March 2001, he would not be enrolled in the Course and consequently, he would not be entitled to ABSTUDY and that he would therefore have to refund any ABSTUDY payments made up until that point in time.

14.     The BIITE letter of 5 March 2001, certainly told Mr. Morgan that he would not be enrolled until he met the cost of the binoculars, but no cut-off date was mentioned.  No doubt the writer of the BIITE letter was conversant with the census date and expected the students to be as well informed.  Various letters from Centrelink to Mr. Morgan during March 2001 told him that he was not entitled to ABSTUDY if he was not enrolled.  However, no one actually explained the overall position to Mr. Morgan.

15.     The Tribunal is satisfied that Mr. Morgan still firmly believes that he has been unfairly “fined” $1,600 for the late return of a pair of binoculars worth $150.  He is outraged by the apparent, to him, unfairness of the situation.  He seems to not be able to grasp the reason for the overpayment and consequent debt.

16.     The Tribunal takes the view that the total position should have been spelled out clearly to Mr. Morgan in mid-March 2001.  The failure to do so has resulted in him receiving payments to which he thought, and still thinks, he was entitled.

17.     The Tribunal finds that the circumstances are sufficiently unusual and special to warrant the exercise of the discretion to waive the right of the Commonwealth to recover the debt.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .......................................................................................
           C. O’Donovan, Associate
           Associate

Date/s of Hearing  2 December 2002  
Date of Decision  30 April 2003
Applicant   Mr. Morgan, himself
Solicitor for the Respondent      Australian Government Solicitor