Neville Sim and Secretary, Department of Social Services
[2013] AATA 861
[2013] AATA 861
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/3634
Re
Neville Sim
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 3 December 2013 Place Brisbane The Tribunal affirms the decision under review.
..........................[Sgd]..............................................
Mr R G Kenny, Senior Member
CATCHWORDS
SOCIAL SECURITY – Benefits and entitlements – Austudy payment – Failure to advise change of enrolment in timely manner – Activity test not satisfied – Overpayment a debt due to the Commonwealth – No basis for writing off debt – No circumstances making it desirable to waive debt – Decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 568, 569, 569A, 569C, 1223, 1236, 1237A, 1237AAD
Social Security (Administration) Act 1999 (Cth) s 68
CASES
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
REASONS FOR DECISION
Mr R G Kenny, Senior Member
3 December 2013
BACKGROUND
On 22 June 2011, Neville Sim lodged a claim for Austudy which is payable in accordance with the terms of the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”). He advised Centrelink that he was a full-time student enrolled in the Certificate III course in Children’s Services at Bright Futures Training College (“BFTC”) for the period from
8 June 2011 to 8 June 2012. The claim was granted by Centrelink on 20 July 2011 with effect from 14 June 2011 and payments were made until 20 December 2011
(“the relevant period”). On 15 August 2011, Mr Sim enrolled in a Certificate III in Children’s Services at Euphoria Institute of Training (“EIT”). On 19 August 2011,
he cancelled his enrolment at BFTC. On 16 September 2011, he advised Centrelink that he may be changing training institutions to EIT and that he intended completing his course over 12 months.
On 4 September 2012, Centrelink determined that Mr Sim had been overpaid Austudy for the relevant period in the amount of $3,653.04 because he had not satisfied the activity test. On 2 May 2013, an authorised person in Centrelink reviewed and varied the decision by waiving the overpayment for the period from 28 September 2012 until
20 December 2011, in the amount of $452.79, on the basis that it arose through administrative error by Centrelink. On further review on 1 July 2013, the Social Security Appeals Tribunal determined that there had been no administrative error to justify waiver of part of the debt and restored the original Centrelink decision that the debt was in the amount of $3,653.04.
LEGISLATION, SUBMISSIONS AND ISSUES
One of the qualification criteria for Austudy[1] in the relevant period was that Mr Sim satisfied the activity test.[2] That test will be met if, throughout the relevant period, he was undertaking qualifying study as defined in s 569A of the Act which reads:
[1] See s 569(1) of the Act.
[2] See s 568 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).
The component of that provision which is in issue in Mr Sim’s case is paragraph (c): whether he was enrolled as a full-time student. The requirement of being enrolled full‑time is met if Mr Sim was undertaking at least three-quarters of the normal full-time workload.[3]
[3] See s 569C of the Act.
For the respondent, Mr Christopher Bishop conceded that Mr Sim satisfied the activity test by undertaking qualifying study from 8 June 2011 when he was enrolled at BFTC. However, he noted that, while Mr Sim completed a unit of competence in that course on 14 June 2011, he commenced no further units after that date. He submitted that Mr Sim did not satisfy the activity test at BFTC from 15 June 2011 because he was no longer undertaking a normal full-time workload. Mr Bishop acknowledged that Mr Sim continued his studies at EIT but submitted that this was not on a full-time basis so that he did not satisfy the activity test while enrolled at EIT. Mr Bishop also submitted that
Mr Sim had not, within 14 days, advised Centrelink of changes in his enrolment circumstances as he had undertaken to do in his initial claim and as he was obliged to do in accordance with the notice[4] provided to him when his claim was granted on
20 July 2011. As a result of continuing payments of Austudy to Mr Sim until
20 December 2011, Mr Bishop submitted that an overpayment arose which was a debt owed by him to the Commonwealth[5] in the amount of $3,653.04 which should not be written off[6] or waived.[7]
[4] Issued under s 68(2) of the Administration Act.
[5] See s 1223 of the Act.
[6] See s 1236 of the Act.
[7] See s 1237A and s 1237AAD of the Act.
For her husband, Mrs Suzanne Sim submitted that Mr Sim had always been undertaking full-time study, from 8 June 2011 while undertaking the course at BFTC, and that he continued to do so when he changed his enrolment to EIT, until 20 December 2011.
As such, she submitted, there was no overpayment of Austudy and no debt to the Commonwealth. Further, she submitted that she and Mr Sim did not have the capacity to repay any monies to the Commonwealth in the event that a debt was found to be owing.
The issue for determination is whether Mr Sim was overpaid Austudy payment; whether, if so, there is a debt due by him to the Commonwealth; and whether, if so, any such debt or part thereof should be written off or waived.
EVIDENCE
Mr Sim
Mr Sim’s evidence was that, in 2011, his wife operated a child care business at their home. He enrolled in the BFTC course to obtain accreditation to provide assistance to her and, eventually, to run the business while she obtained work elsewhere. He could not recall whether his initial application for Austudy was made on-line or by phone.
The BFTC course was based on the progressive completion of work modules. He was given assistance with the first of these by Ms Penny Hare, a trainer with BFTC.
He submitted this module for assessment on 14 June 2011 and commenced a second module. He had difficulty with the course materials which comprised various readings, some internet-related activity and the completion of a workbook. He estimated that he spent approximately four hours each day on the materials until he cancelled his enrolment. With this second BFTC module, he was given little assistance by Ms Hare who, by then, had started her own child care training business in partnering agreement with TLC Training Solutions (“TLC”). This was EIT. Under the agreement, EIT delivered its courses but enrolment information was retained and issued on TLC letterhead only.
Encouraged by Ms Hare, Mr Sim cancelled his enrolment with BFTC and enrolled in a similar course with EIT on 15 August 2011. He advised Centrelink of this by phone on 15 September 2011 but recalled that, in the conversation, there was discussion about whether he was enrolled on a full-time basis with EIT, which required a 30 week course of study, or part-time, which involved a course of 52 weeks duration. He recalled advising the Centrelink officer that he would obtain further information about his enrolment status and advise Centrelink accordingly. He then discussed his enrolment with Ms Hare who confirmed that he was a full-time enrolee and who undertook to “take care of” the enrolment issue with Centrelink. In evidence was an email message, dated
19 September 2011, sent by Mr Sim to Ms Hare. It reads:[8]
Just a reminder about the letter outlining TLC will offer the Cert III for 12 months - as per our phone call on Friday. It would be good if we could get this letter to Centrelink within the next couple of days so that they don’t stop their assistance for me. According to Centrelink, TLC only offer the Cert III in Children Services full time for 30 weeks and part time for 12 months and they don’t offer assistance if you do it part time. I would hope to have it finished in 30 weeks but I feel I need the 12 months to complete it.
[8] Exhibit 1, p. 66.
The courses at EIT were constructed differently from those at BFTC. In addition to work books and reading, he was required to attend sessions where enrolees were given a presentation on some aspect of the course which was followed by workshop activity.
Mr Sim recalled attending three of these sessions. Mr Sim was aware that his Austudy payments were contingent on his being in full-time study and, at all times, he believed that he was enrolled with EIT on that basis. He also was aware that he was obliged to advise Centrelink of any changes to the circumstances relating to his course enrolments. He believed that he did this on all occasions.
In December 2011, Mrs Sim closed her child care business. As a result, Mr Sim no longer required any accreditation and he cancelled his enrolment with EIT.
From September to December 2011, while enrolled with EIT, he had continued to apply himself to the course materials but was unable to present any material for assessment.
Since August 2012, Mr Sim has been engaged in establishing his own IT business.
He has had moderate success with this and his income varies significantly on a weekly basis. He has several clients who pay him a monthly retainer as well as other clients for whom he does work on a contact basis yielding an income which fluctuates from nil to $400 per week. Mrs Sim is now in full-time employment with an income of $1,900 per fortnight. They live with their six children in rented premises. Except for one son who has Asperger Syndrome and another for whom they are paying ongoing dental costs, they are in good health. They have outstanding debts relating to personal loans. They are able to cover their overall living costs on a weekly basis but have no additional monies and have no savings.
Centrelink Records
The Centrelink letter granting Austudy to Mr Sim was in evidence.[9] Therein, Centrelink declared that the letter was an information notice given under social security law, advised that the grant was in relation to Mr Sim’s study at BFTC and also referred to various matters about which Mr Sim was obliged to advise Centrelink within 14 days of them happening. One of these was any change in circumstances affecting the payment, including the cessation of being a full-time student.
[9] Exhibit 1, p. 56.
A Centrelink file note, dated 16 September 2011, gives a record of telephone conversations between Mr Sim and a Centrelink officer.[10] It refers to a change of institutions and advice to Mr Sim that EIT was not approved for Austudy. In a further phone call on that day, Mr Sim advised that the course was offered through TLC.
The Centrelink officer then advised that this was an approved institution and that the course Mr Sim was undertaking was offered over 30 weeks on a full-time basis and over 52 weeks on a part-time basis. The officer noted that Mr Sim was taking the course over 12 months but Mr Sim advised that he understood that he was a full-time enrolee.
The officer advised that details were not recorded at that time because Mr Sim was to provide further information about his enrolment status. Another file note, dated
28 September 2012,[11] refers to Mr Sim not providing further information about his enrolment.
[10] Exhibit 1, p. 118.
[11] Exhibit 1, p. 129.
BFTC, TLC and EIT documentation
In evidence was a letter, dated 14 June 2011,[12] from Ms Hare. She was writing as Mr Sim’s BFTC trainer and advised that Mr Sim completed the first course module and was provided a workbook for a second module (CHCIC301D[13]). She noted: “Perused content and layout”. Under the letterhead of EIT, on 27 September 2013, Ms Hare informed Mr Sim that, after consulting her diary notes, she was able to advise that he returned the Learner Guide CHCIC301D in unmarked form to BFTC on 30 July 2011.[14] Also, on 27 September 2013, Ms Hare confirmed that Mr Sim was undertaking study at EIT from 14 August 2011 until 24 December 2011.[15]
[12] Exhibit 2.
[13] This code reference is indistinctly written.
[14] Exhibit 3.
[15] Ibid.
Also in evidence were two letters under the letterhead of TLC Training Solutions from Ms Ellie Grozdanovska, the National Administration Manager. On 15 August 2011, Ms Grozdanovska welcomed Mr Sim to his course and noted that his mode of study was “Workplace Based” and that his enrolment date and notional completion date were 15 August 2011 and 15 August 2012, respectively.[16] On 4 October 2013,[17] Ms Grozdanovska advised that Mr Sim was enrolled in full-time study mode at that institution from 15 August 2011 until 24 December 2011.[18]
[16] Exhibit 7.
[17] This letter was unsigned.
[18] Exhibit 5.
Extracts from the web sites of BFTC and TLC for the respective courses in which
Mr Sims was enrolled were in evidence.[19] Therein, the BFTC course is described as a full-time course of 58 weeks duration. The TLC course, offered through EIT, is described as a full-time course of 30 weeks but which “is normally only delivered part time over 52 weeks”. It is noted that the institution did not define the full-time workload which was determined under social security law to be 20 hours per week.
CONSIDERATION
[19] Exhibit 8.
Overpayment and debt
There is conflicting evidence on two aspects of this matter. These are whether Mr Sim continued with his studies with BFTC after the assessment of his first module on
14 June 2011; and whether he was enrolled on a full-time basis with EIT.
Mr Sim said that he continued his BFTC studies with a second module until he cancelled his enrolment in August 2011. Ms Hare confirmed that he was provided with further material. However, her diary record was that Mr Sim returned an unmarked guide to BFTC on 30 July 2011. Mr Sim described the difficulty he had without Ms Hare to assist him and I am satisfied that he did not undertake course work after 14 June 2011.
I accept that Mr Sim believed that he was enrolled on a full-time basis with EIT. Also, Ms Grozdanovska, in her letter of 4 October 2013, described Mr Sim as being enrolled in full-time study mode. However, the TLC web site material advises that, while the EIT course could be taken full-time over 30 weeks, it was normally only delivered part-time over 52 weeks. That was the length of Mr Sim’s enrolment. He declared that to the Centrelink officer on 16 September 2011; and the 52 week duration of his enrolment was confirmed by Ms Grozdanovska in her letter, dated 15 August 2011. I am satisfied that Mr Sim was enrolled for the course over a 52 week period and I am also satisfied that this was equivalent to a part-time, rather than a full-time, enrolment. Mr Sim clearly had concerns about his enrolment status as was revealed in the email message[20] he sent to
Ms Hare on 19 September 2011 after he had spoken with the Centrelink officer.
[20] See Para 9 (above).
While Mr Sim’s was undertaking full-time study with BFTC, this did not continue after 14 June 2011. Accordingly, he was not qualified to receive Austudy on the basis of his enrolment with BFTC after that date. Mr Sim’s enrolment with EIT was not on a full-time basis and, accordingly, he was not qualified to receive Austudy whilst so enrolled.
I am satisfied that Mr Sim was overpaid Austudy from 15 June 2011 until
20 December 2011. Under s 1223 of the Act, an overpayment is a debt to the Commonwealth. Mr Sim did not dispute the amount of the overpayment.
The calculations relating to that debt were in evidence and I am satisfied that the debt is $3,653.04
Writing off debt
A debt may be written off under s 1236 of the Act. This is the case if the debt is irrecoverable at law; the debtor has no capacity to repay the debt; the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or it is not cost effective for the Commonwealth to take action to recover the debt. Those factors are not met in this case. In particular, I am satisfied that Mr Sim does not lack capacity to repay the debt on a continuing, albeit long term, basis. In that situation, the debts should not be written off.
Waiver of debt
A debt to the Commonwealth may be waived under s 1237A of the Act because of sole Commonwealth error. The letter, dated 20 July 2011, in which Mr Sim was advised that his claim for Austudy had been granted, was an information notice given under s 68(2) of the Administration Act. He was obliged to advise Centrelink of a range of matters including any change in circumstances affecting his Austudy payment, such as the cessation of being a full-time student. This was to be done within 14 days of the change.
I am satisfied that Mr Sim did not comply with that obligation. That failure contributed to Centrelink’s overpayment to him and, therefore it may not be waived under s 1237A of the Act.
A debt to the Commonwealth may be also be waived under s 1237AAD of the Act which reads:
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.
While I am satisfied that Mr Sim did not knowingly make a false statement or a false representation to Centrelink, I am satisfied that he did not comply with the terms of s 68 of the Administration Act. In Groth v Secretary, Department of Social Security,[21] Kiefel J observed that special circumstances:
would require something to distinguish ... [the] ... case from others, to take it out of the usual or ordinary 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.
[21] (1995) 40 ALD 541 at 545.
Mr Sim received Austudy payments to which he was not entitled and no circumstances have been advanced which may be regarded as special such as to justify waiver of that debt under s 1237AAD of the Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 27 (twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member ..........................[Sgd]..............................................
Associate
Dated 3 December 2013
Date of hearing 11 November 2013 Advocate for the Applicant Mrs Suzanne Sim Solicitor for the Respondent Mr Christopher Bishop, Departmental Advocate
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