Mortazavi and Secretary, Department of Education, Employment and Workplace Relations
[2008] AATA 36
•15 January 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 36
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1353
GENERAL ADMINISTRATIVE DIVISION ) Re KIRSTINE JAYNE MORTAZAVI Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Senior Member L Hastwell Date15 January 2008
PlaceAdelaide
Decision The Tribunal is satisfied that in the special circumstances of the case it is appropriate to waive 50 percent of the overpayment.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – Austudy – enrolment as a full-time student at beginning of first semester – application for Austudy shortly before commencement of second semester – subsequent withdrawal from two subjects in that semester thereby reducing workload below 75 percent of a study load for the second semester – meaning of “particular study period” – facts of particular enrolment and requirements of enrolling institution to be considered in determining particular study period – Austudy entitlement to be ascertained based on period for which application made and not earlier period – overpayment confirmed – special circumstances considered – decision varied – overpayment established – partial waiver of debt based on special circumstances of particular case
Social Security Act 1991 s 568, 569(1), 569A, 569C, 569D, 1223(1), 1237A(1), 1237AAD
Secretary, Department of Family and Community Services v Matheson (2004) 78 ALD 509
Re Secretary, Department of Family and Community Services and Zhang [2003] AATA 433 Re Coleman and Secretary, Department of Family and Community Services [2002] AATA 772
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Davey and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114
Secretary, Department of Family and Community Services v Allen (2001) 66 ALD 147
Re Barrington and Secretary, Department of Employment and Workplace Relations [2005] AATA 1050REASONS FOR DECISION
15 January 2008 Senior Member L Hastwell 1. Kirstine Mortazavi (the applicant) seeks review of a decision of the Social Security Appeals Tribunal (the SSAT) dated 9 March 2007 which affirmed a decision of an Authorised Review Officer that she had been overpaid Austudy in the sum of $2,257.50 during the period 26 July 2006 to 19 October 2006 (the overpayment period). The SSAT found that there was no basis on which that debt could be waived.
2. The overpayment arose because the applicant did not qualify as being a full-time student and eligible for Austudy payments during the overpayment period.
legislation
3. The relevant legislation is found in the Social Security Act 1991 (the Act).
4. Section 568 of the Act provides a general rule for qualification for payment of Austudy in the following terms:
“568 Qualification for austudy payment—general rule
Subject to this Subdivision, a person is qualified for an austudy payment in respect of a period if, throughout the period:
(a) the person satisfies the activity test (see Subdivision B); and
(b) the person is of austudy age (see Subdivision C); and
(c) the person is an Australian resident.”
5. The activity test, as referred to in s 568(a), is described in s 569(1) of the Act in the following terms:
“569(1)Subject to subsection (2), a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is undertaking qualifying study (see section 569A).”
6. “Qualifying study” is defined in the following terms in s 569A of the Act:
“569A Undertaking qualifying study
For the purposes of this Part, a person is undertaking qualifying 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 course in which the person is enrolled, or intends to enrol, is an approved course of education or study (see section 569B); and
(c)the person is a full‑time student or a concessional study‑load student in respect of that course (see sections 569C and 569D); and
(d) the person satisfies the progress rules (see sections 569G and 569H)”
7. Section 569D of the Act provides for two classes of students who may qualify for a reduced study load and neither is applicable in this instance.
8. A “full-time student” is defined in s 569C of the Act in the following terms:
“569C Full‑time students
For the purposes of this Subdivision, a person is a full‑time student in respect of a course if:
(a)in the case of a person who is enrolled in the course for a particular study period (such as, for example, a semester)—the person is undertaking at least three quarters of the normal amount of full‑time study in respect of the course for that period; or
(b)in the case of a person who intends to enrol in the course for a particular study period—the person intends to undertake at least three quarters of the normal amount of full‑time study in respect of the course for that period.”
9. Section 1223(1) of the Act provides that if there has been an overpayment then that overpayment becomes a debt recoverable by the Commonwealth
10. Section 1237AAD of the Act provides for waiver of some or all of a debt in special circumstances.
issues
11. The issue to be determined in this case is whether the applicant satisfied the activity test under s 568(a) of the Act during the overpayment period. It is accepted by the Department that she satisfies all criteria required for her to be eligible for Austudy during the relevant period save for the requirement of being a full-time student.
12. This requires a consideration of the following issues:
·was she a full-time student as defined by the legislation during the overpayment period; and
·what is meant by a “particular study period”?
13. If the applicant fails to satisfy the Tribunal that she was a full-time student during the period of the overpayment, then the Tribunal must consider whether there are special circumstances in this case (other than financial hardship alone) that would justify waiver of some or all of the debt.
the hearing
14. The application for review was heard by the Tribunal on 17 October 2007. The applicant was represented by Ms Margaret Riley. The T documents were received into evidence as Exhibit R1. Other exhibits will be referred to where relevant.
15. There was no dispute between the parties about the central facts of this matter and the Tribunal makes the following findings of fact:
·The applicant enrolled to study for her first year of a Bachelor of Laws degree at Charles Darwin University for the 2006 academic year.
·In her enrolment form received by Charles Darwin University on 3 February 2006, she enrolled to study as an external student in a Bachelor of Laws degree (Exhibit A1).
·She enrolled to study on a full-time basis for the 2006 academic year. Her enrolment form indicated enrolment in 80 units of study. The units were taught in semesters 1 and 2 of 2006. This was considered a full-time load for first year law students and was in accordance with the University’s published recommendations.
·The University required students to enrol for a full academic year in advance rather than on a semester by semester basis .
·The applicant gave birth to her first child on 3 February 2006.
·During the first semester of 2006 she received Parenting Payment. She was then advised by Centrelink to apply for Austudy and her husband commenced to receive Parenting Payment. She applied for Austudy at the end of May 2006 and the payment was granted effective from 2 June 2006 until 26 October 2006.
·The teaching for first semester finished on 1 June 2006. The second semester commenced in July 2006.
·A full-time workload for semester 2 of 2006 was four subjects.
·On 15 June 2006 Centrelink wrote to the applicant and advised her, amongst other things, that she must advise Centrelink within seven days if her study workload dropped below 75 percent of a full-time workload.
·The applicant's baby became ill in July 2006 with a respiratory virus and he was admitted to hospital. It was as a direct result of this that the applicant decided to reduce her study workload for the second semester.
·On 25 July 2006 the applicant withdrew from two of the four subjects she was enrolled in for semester 2, thereby reducing her study load for that semester to less than 75 percent of a usual study load.
·There is a record of contact between the applicant and Centrelink in August 2006 when she reported her husband's earnings. There is no record on the Centrelink file of any discussion with respect to her Austudy payments.
·The applicant’s Austudy payment was terminated at the end of the second semester after she contacted Centrelink by telephone and they became aware of her reduced study load.
·On 22 November 2006 an adjusted overpayment of Austudy for the period 26 July to 19 October 2006 was raised in the sum of $2,257.50.
·Charles Darwin University offers a summer semester to students. In 2006 a summer semester commenced on 27 November 2006 and ended on 9 February 2007. The applicant completed one of the two subjects from which she had previously withdrawn during that summer semester. The result for that semester was recorded as part of the 2007 academic result.
·Between the commencement of the academic year in 2006 and the commencement of the academic year in 2007 the applicant had successfully completed 70 points of her study load for first year law with a full-time load for an academic year being 80 points.
·Academic results are awarded on a semester basis in the Bachelor of Laws degree at Charles Darwin University.
·The applicant and her husband were likely to have other entitlements to Social Security benefits had she not been a recipient of Austudy during the overpayment period.
·The applicant did not knowingly mislead the Department as to her student status nor did she knowingly fail to notify them of her altered study load in the second semester.
the applicant’s evidence
16. The applicant confirmed the facts as set out above. She also submitted a statement signed by her on 10 October 2007 which was received as Exhibit A5. In that statement she described the distress that she experienced when her son became ill in the middle of 2006. The reasons for deciding to reduce her study load at that time related directly to the demands of managing her son’s illness.
17. The applicant has a history of suffering from anxiety and depression. This was noted on her Austudy application form (T4/22).
18. She asked the Tribunal to make a finding that the “particular study period” in her case should be determined to be the whole academic year of 2006 inclusive of the first semester and the summer semester and if that is accepted, then she had successfully completed more than 75 percent of a student workload during that time.
19. She maintained her full-time student card throughout 2006 and she understood that she had maintained her full-time student status throughout 2006.
20. She recalls making contact with Centrelink to advise of her husband’s earnings and advising them at the same time that she had deferred some of her subjects because of her son’s illness. Her recall is that she was told by Centrelink that that would not cause any problems with her Austudy entitlements.
21. She described a face-to-face interview at the Noarlunga office after phoning Centrelink initially in August. The meeting at Noarlunga was about other issues, but she was confident that she had raised the issue of her altered study load during that discussion.
22. She had previously had an overpayment with Centrelink many years earlier and was mindful of the need to report any change in her circumstances.
23. She has enrolled for a full-time study load in 2007, but she is not receiving Austudy as her husband is now in full-time employment.
24. She said the debt is difficult for her to repay as she earns no income. She puts her son in care for 3 full days a week while she studies. She receives Family Tax Benefit which is consumed by child care fees, credit card payments and her car loan. She and her husband have had to seek financial assistance from her husband’s father to assist them in managing the cost of day to day living.
25. Had she known that that she would face an overpayment when she reduced her study load then she would have withdrawn her claim for Austudy and applied for other benefits that would have been available to her during that time.
discussion of the evidence
26. The applicant was a straight forward witness. She was genuinely distressed at the situation she has found herself in and the Tribunal accepts that she at no stage intentionally mislead the Department.
27. A number of exhibits were received by the Tribunal. They included the original enrolment form to show that she had enrolled for external study in semesters 1 and 2 of 2006 (Exhibit A1). A document headed “Higher Education Semester Dates” (Exhibit A2) shows that that the period covered by semesters 1 and 2 would have been 26 February 2007 until approximately 26 October 2007.
28. The Higher Education Semester Dates for Charles Darwin University show that the full calendar year runs from November of one year to November of the next year and is broken into 4 semesters, being semesters 0, 1, 2 and 3. Semester 0, which is referred to as the summer semester, commences shortly after conclusion of teaching at the end of the third semester and goes through until shortly before the commencement of the first semester in February of the following year.
29. It appears that law subjects are taught in the first and second semesters and some subjects are repeated in the summer semester. The course printout does not show that law subjects were available in the third semester, nor is an advance schedule of subjects shown for the summer semester. It appears likely that the summer semester is one where students can either overload on some subjects to speed their progress to a degree or catch up on subjects they have missed or failed. Not all subjects are offered during that semester and the course instructions indicate an expectation that the students will enrol in their workload for a year in the first and second semesters.
30. Exhibit A3 is an Academic Record showing that the applicant completed 5 subjects to the end of semester 2 and then completed a subject known as Northern Perspectives in semester 0 of 2007. Her academic record shows successful completion of 70 points in subjects by February 2007.
31. Exhibit R5 is a print-out of the academic requirements to complete the Bachelor of Laws degree at Charles Darwin University. The degree can be completed on a full-time basis in 4 years. To do so, a student must complete 320 credit points in subjects during that 4 year period.
consideration and application of the law
32. The applicant meets the provisions of s 568 of the Act, save for the issue of whether she satisfied the activity test during the overpayment period.
33. Section 568 provides that “… a person is qualified for an austudy payment in respect of a period if; throughout the period” they, inter alia, satisfy the activity test.
34. The period in this case is the period that commenced on 2 June 2006 and continued for the period of the overpayment. Her application related to a period that occurred after the conclusion of the first semester.
35. To satisfy the activity test the applicant must meet the provisions of s 569A of the Act which requires that she be a full-time student or a concessional study load student to be eligible for Austudy during that period.
36. To come within the definition of a full-time student, the applicant must satisfy the definition in s 569A of the Act and must have been undertaking at least three-quarters of the normal amount of full-time study in respect of the “particular study period” for which she was enrolled.
37. The applicant ceased to be a full-time student for the purposes of semester 2 when she withdrew from two subjects in July of 2006 which was the commencement date of teaching for the second semester.
38. The applicant contends that despite her withdrawal from those two subjects, the particular study period for which she was enrolled was the entire academic year for 2006 inclusive of the summer semester which ended in 2007. She contends that her studies in semester 1 of 2006 and semester 0, both of which periods fell outside the period of the overpayment, must be brought to account when considering whether she was a full-time student during the relevant period of the overpayment. If that approach is adopted, then she satisfies the requirements of completing at least 75 percent of the required full-time study load during the period of the overpayment.
39. The respondent (the Department) contends that the particular study period for which she was enrolled was the second semester of 2006 and when she withdrew from two of her subjects in that semester her study level dropped below 75 percent of a full-time study load for that semester and therefore she did not qualify for Austudy payments during the relevant period.
40. There has been prior consideration as to how the term “particular study period” should be interpreted. The case of Secretary, Department of Family and Community Services v Matheson (2004) 78 ALD 509 involved payments of Youth Allowance under similar legislation. The Full Federal Court in that case found that the term “particular study period” was an entire academic year. The Court commented as follows:
“18. … The resultant questions thus posed by s 541B(1)(b)(i) and s 541B(1)(b)(iii) can be put as follows:
(i) what was the particular study period for which she was enrolled for the degree course? and
(ii) was she undertaking at least three quarters of the normal amount of full-time study in respect of the degree course for that period?”
41. The Full Federal Court went on to say “Each case depends on its own facts and circumstances”.
42. In that case there were limited facts available to the Tribunal in making its decision and the Tribunal had remarked that the question of fact was not easy to answer because there was very little information available to it from the University. The Full Court went on to say:
“24 By way of illustration, the Tribunal observed in Re Secretary, Department of Family and Community Services and Zhang (2003) 74 ALD 226 at [36]-[39], that the determination of a particular study period may include a variety of circumstances such as the way the study is viewed by the University, having regard to the particular character of the work which is being undertaken. Considerations such as whether results are annual, for example, may be of importance. Other considerations may involve the types of subjects on offer and the way in which the student load is determined in the particular institution. That is to say, whether the subjects are semester based or sessional. The Tribunal has referred to the way in which the institution has organised the program and more specifically, whether it is organised around semester based or sessional subjects. In Zhang’s case the determination was that the particular study period was for a single semester and the fact that students enrol for both autumn and spring sessions at the beginning of the academic year was a matter of administrative convenience. These considerations highlight the factual nature of the inquiry and the types of matter which may be relevant in arriving at a conclusion in particular cases.”
43. In this case Exhibit A1 indicates that the initial enrolment was for semesters 1 and 2 of the 2006 year and that under Section 4 of that form a student was directed as follows:
“ …
·You need to enrol for the whole year. This includes Semester 1 and/or 2 and any other Teaching Periods as listed on the table below.
·If you are not enrolling for the whole year because you are ’Intending to Graduate’ or seeking ‘Leave of Absence’ for either Semester 1 and/or 2 please refer to Student Guide.
…”
44. Subjects were not taught over two semesters and subjects were not offered in the second semester that had been offered in the first. Some subjects were taught in the summer semester, but it appears that they are not advised in advance and many involve a repetition of subjects already taught.
45. The teaching period as set out in that form is shown as being Summer Semester (SO) and then Semesters 1, 2 and 3.
46. The enrolment by the applicant was for semesters 1 and 2. She enrolled for a full-time study load for those semesters.
47. The applicant’s academic record indicates that results were awarded not on an annual basis, but on a semester by semester basis. Her Academic Record shows that the subject that was studied by the applicant during the summer semester (which represented the first semester of the academic year of 2007) was awarded as a 2007 academic year subject.
48. The recommended study plan set out on page 4 of Exhibit R5 recommends all studies take place in semesters 1 and 2 of each year. There is no mention of the purpose of the summer semester.
49. The Tribunal accepts that it is a question of fact in each case as to what amounts to a particular study period. The Austudy Policy Guidelines at 1.1.F.230 provide guidance to decision-makers in the following terms:
“If a student is enrolled in or assessed upon year long subjects then the full year HECS loading of 0.75 is to be used. Generally speaking, unless the student has year long subjects their study load should be assessed on a semester basis.”
50. The Policy Guidelines are designed to provide instruction and assistance to officers making decisions under this legislation. They are guidelines only. The Tribunal should have regard to them, but is not bound by them.
51. It is a matter of fact in each case as to what a “particular study period” amounts to. In the cases of Re Secretary, Department of Family and Community Services and Zhang [2003] AATA 433 and Re Coleman and Secretary, Department of Family and Community Services [2002] AATA 772 a student was overloaded in one semester and under loaded in the next. In each case the particular period of study was found to be a semester.
52. The Academic Record at Exhibit A3 indicates that the period of study in this case is a semester.
53. The Tribunal’s view is that for the purposes of the Charles Darwin University law course, it is a matter of administrative convenience to ask students to indicate their annual intentions in advance, but the particular study period is in reality a semester. No subjects are taught over two semesters and results are awarded on a semester by semester basis. Students have a recommended path to achieve a degree in four years, but they can juggle subjects between semesters to suit their own ability to manage the study load.
54. In this case, the applicant fails to qualify as a full-time student during the period of her overpayment because in the particular study period for which she was enrolled, being the second semester of 2006, she did not maintain a 75 percent study load because of her alteration to her enrolment in the second semester.
55. The new academic year of 2007 started with semester 0, which commenced in November 2006, and that commenced a new study period. The Tribunal affirms the decision of the SSAT that there has been an overpayment in this case.
56. Section 1223(1) of the Act provides that this overpayment becomes a recoverable debt due to the Commonwealth because the applicant was not entitled to obtain that benefit during the relevant period.
57. The next issue for the Tribunal to consider is whether there are any special circumstances which would give rise to a write-off or waiver of the debt in this case.
58. Section 1237A(1) of the Act allows for waiver of some or all of a debt where a proportion of a debt was attributable solely to administrative error on the part of the Commonwealth and the funds were received by the debtor in good faith. That provision has no application in this case as the Tribunal is not satisfied that any administrative error is proven.
59. Although the applicant believes that she mentioned her altered study load in a discussion with the Department, there is no objective evidence of this notification and it appears that she did not make a direct and specific notification of her altered study load to the Department. The obligation on her was to positively bring to the Department’s attention any alteration in her study load and the tribunal does not accept that occurred in this case.
60. The Tribunal can consider whether recovery of the debt can be waived due to the special circumstances of the case pursuant to s 1237AAD of the Act which states as follows:
“1237AAD 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, the Administration 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.”
61. The Tribunal accepts that the debt did not result from any false statement being made by the applicant and that she did not knowingly fail to comply with the notification provisions of the Act.
62. The applicant acted in good faith throughout and worked hard to ensure that she maintained progress through the course. She genuinely believed that she was able to defer to the summer semester the subjects that she did not complete because of personal circumstances in semester 2 without this affecting her Austudy entitlements in any way.
63. It appears that the applicant and her husband would have been entitled to other Social Security payments had she advised the Department to stop paying her Austudy when she reduced her workload. She could have applied, as could her husband, for other benefits during the relevant period. They would not have been required to repay those payments She had an entitlement that she did not exercise during the overpayment period.
64. In Re Beadle and Director-General of Social Security (1984) 6 ALD 1 “special circumstances” within the context of the Act have been interpreted as meaning circumstances that can be described as “unusual, uncommon or exceptional”.
65. Special circumstances are to be determined on a case by case basis and different combinations of factors can give rise to a finding of special circumstances.
66. In the recent case of Re Davey and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114, Deputy President Forgie concluded that not only must the circumstances be special and be out of the ordinary, but further to determine whether this provision is applicable also requires “a consideration of the general administration of the social security system”.
67. In the case of Secretary, Department of Family and Community Services v Allen (2001) 66 ALD 147, Justice Fury, when considering the meaning of special circumstances, commented as follows:
“It is not sensible to lay down precise limits or precise rules as to what may constitute special circumstances: … ill-health, financial circumstances and the unfairness of a strict application of the Act … may in an individual case constitute special circumstances …”
68. In the case of Re Barrington and Secretary, Department of Employment and Workplace Relations [2005] AATA 1050 Deputy President Groom commented:
“26. … the decision-maker … is given a wide discretion, not limited by legislated particulars, to consider all the circumstances of a case and to decide whether they are ‘special’ thus permitting the exercise of the discretion. In order to properly exercise this discretion there must be special elements in the case which stand apart from the usual or the ordinary.”
69. The Tribunal has considered all available evidence and is satisfied that there are special circumstances in this case which justify waiver of a portion of the overpayment.
70. The applicant did study 75 percent of a full-time course load over three semesters.
71. She commenced study shortly after giving birth to her first child. Despite the child’s illness and her own prior history of anxiety and depression, she managed to complete 75 percent of a full-time course load in the first 3 semesters of her study. She went on to study a further full-time course load in the following academic year. She clearly is a very determined person. The applicant has a history of suffering from anxiety and depression and the period of her child’s illness was a distressing time for her. She appears to have otherwise endeavoured to honour her obligation to report her husband’s earnings to the Department. She acted in good faith throughout.
72. Had she realised that she could not stagger her study in the way that she did, she and her husband would have made application for other Social Security entitlements and would not have been financially disadvantaged in the way that they have now been.
73. The applicant and her husband are in difficult financial circumstances and although this alone cannot amount to special circumstances, it is a factor to be taken into account in combination with others when considering the issue of special circumstances.
74. The applicant’s statement (Exhibit A5) describes the difficulties that the applicant has suffered in the past and what a stressful time mid 2006 was for her while she was caring for a small baby and also studying. The Tribunal accepts the veracity of that statement.
75. The Tribunal is satisfied that there are unusual and exceptional circumstances in this case and that there is significant unfairness to the applicant in a strict application of the Act in the circumstances.
76. The Tribunal is satisfied that in the special circumstances of the case it is appropriate to waive 50 percent of the overpayment.
77. The overpayment is confirmed and the case is remitted to the Department to recalculate the debt based on a waiver of 50 percent of the debt.
I certify that the 77 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell
Signed: .....................................................................................
AssociateDate of Hearing 17 October 2007
Date of Decision 15 January 2008Advocate for the Applicant Ms M Riley
Welfare Rights
Advocate for the Respondent Mr C Goldsworthy
Centrelink Legal Services Branch
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