Norbert Von Zum Hof and Secretary, Department of Social Services

[2014] AATA 556

[2014] AATA 556  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/3420
Re	Norbert Von Zum Hof
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member J Toohey
Date of decision	5 June 2014
Date of written reasons	12 August 2014
Place	Sydney

The decision is varied so that the amount of the debt that relates to the period 11 November 2011 to 22 February 2012 is waived.

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Senior Member J Toohey

CATCHWORDS – AUSTUDY – whether applicant overpaid – whether special circumstances – decision that applicant has a debt affirmed – amount of debt varied on account of special circumstances

Legislation

Social Security Act 1991 ss 569A(c), 569C(a), 1237AAD

Cases

Re Beadle and Director-General of Social Security (1984) 6 ALD 1

Angelakos v Secretary, Department of Employment and Workplace Relations (2007) FCA 25

REASONS FOR DECISION

Senior Member J Toohey

Introduction

1. On 4 June 2013, the Social Security Appeals Tribunal (SSAT) affirmed a decision by Centrelink that Mr Norbert Von Zum Hof had the following debts on account of overpayments of austudy payment:

   (i)$4427.54 for the period 20 July 2009 to 18 December 2009; and

   (ii)$9258.14 for the period 11 July 2011 to 22 February 2012.

2. Centrelink decided, and the SSAT agreed, that there was no reason why Mr Von Zum Hof should not be required to repay the whole of those amounts.

3. These written reasons have been requested by the respondent.  They reflect reasons given orally at the conclusion of a hearing on 5 June 2014 for my decision that Mr Von Zum Hof has a debt in the amounts claimed by Centrelink but that, by reason of special circumstances, the amount of the debt for the second period should be varied.

   Mr Von Zum Hof’s studies in 2009

4. Mr Von Zum Hof was receiving newstart allowance in February 2009 when he enrolled in a full-time Certificate IV Information Technology (Websites) course at TAFE.  As of 20 February 2009, his newstart allowance was cancelled and he was paid austudy payment as a full-time student.

5. To qualify as a full-time student for the purposes of austudy payment, a student must undertake three quarters of the normal amount of full-time study for the particular course: ss 569A(c) and 569C(a) of the Social Security Act 1991 (the Act). In relation to Mr Von Zum Hof’s TAFE course, this is taken to be 12 hours of study each week.

6. TAFE records show that, in semester two of 2009, Mr Von Zum Hof attended 24 per cent of the course hours, and he did not attend at all after 8 September 2009.  Mr Von Zum Hof accepts that he was not a full-time student in 2009, although he disputes some of the hours of attendance as recorded by TAFE.

7. As Mr Von Zum Hof was not a full-time student during 2009, he did not qualify for austudy payment, meaning he has a debt for that period.

   Mr Von Zum Hof’s studies in 2011

8. Details of the TAFE records obtained by Centrelink are set out at paragraphs 14 to 18 of the SSAT’s decision dated 4 June 2013.  As stated in that decision, Mr Von Zum Hof does not agree that those hours are correctly recorded.  However, even allowing for the hours he disputes, it is clear that he did not attend three quarters of the normal amount of full-time study for semester two in 2011. 

9. As Mr Von Zum Hof was not a full-time student during semester two in 2011, he did not qualify for austudy payment, meaning he has a debt for that period.

   Is there any reason Mr Von Zum Hof should not have to repay any or all of the debts?

10. A debt may be waived if it did not result wholly or partly from the debtor knowingly making a false statement or a false representation, or failing or omitting to comply with the relevant legislation; and there are special circumstances, other than financial hardship alone, that make it desirable to waive; and it is more appropriate to waive than to write off the debt or part of the debt: s 1237AAD of the Act.

11. The Secretary accepts that Mr Von Zum Hof did not knowingly make a false statement or representation in connection with his payment and did not knowingly fail or omit to comply with relevant legislation, however, the Secretary says there are no special circumstances by reason of which any or all of his debts should be waived.

12. The Act does not define “special circumstances” and gives no guidance as to its meaning in s 1237AAD.  It has been observed many times by the Courts and this tribunal that the expression is “by its very nature incapable of precise or exhaustive definition” and will depend on the particular case.  The circumstances “must have a particular quality of unusualness that permits them to be described as special”: Re Beadle and Director-General of Social Security (1984) 6 ALD 1; see also Angelakos v Secretary, Department of Employment and Workplace Relations (2007) FCA 25.

13. In relation to 2009, Centrelink sent Mr Von Zum Hof a letter on 28 February 2009 advising him that he was being paid austudy payment on the basis that he was studying full time.  The letter advised that he was required to notify Centrelink within 14 days if he ceased to be a full-time student.

14. Mr Von Zum Hof says that, when he ceased his studies in 2009, he went to his local Centrelink office and advised a member of staff that he was no longer studying and wished to change to newstart allowance.  He says he was not aware that his payment was not changed from austudy payment to newstart allowance and, had he been aware, he would have taken steps to have his payment revert to newstart allowance.  Mr Von Zum Hof is unable to say when this conversation occurred but says it might have been around August 2009.  Centrelink has no record of such a conversation.

15. In relation to the debt in 2009, I am not satisfied that there are special circumstances by reason of which Mr Von Zum Hof should not have to repay all of the debt.  He says it is not fair for a debt to be raised because, were he not on austudy payment, he would have qualified for newstart allowance in that period.  As he was receiving newstart allowance prior to receiving austudy payment, that appears to be likely.  However, there are a number of criteria that a person must satisfy in order to qualify for newstart allowance and it is not possible now to say that Mr Von Zum Hof qualified for the payment during the relevant period in 2009.  As well, he should have advised Centrelink when he stopped studying full time and, although he believes he did so, I am not satisfied that is correct.

16. In relation to 2011, Mr Von Zum Hof says he spoke to someone at his local Centrelink office in November 2011 when he had finished his studies for the year.  He says he asked to transfer back to newstart allowance and said he was thinking of returning to study in 2012.  He says a female Centrelink officer advised he should remain on austudy payment and “see what happens”.

17. Mr Von Zum Hof started a TAFE course in 2012 but withdrew.  He says that, when he notified Centrelink he had ceased full-time study, Centrelink should have cancelled his payment.  He says he has always notified Centrelink when required, and Centrelink records tend to bear this out.

18. In relation to the debt in 2011, I find that there are special circumstances by reason of which that part of the debt that arose in the period 11 November 2011 to 22 February 2012 should be waived.  Up until that date, Mr Von Zum Hof was not studying full time and was not entitled to austudy payment.  However, I accept that he contacted Centrelink on 11 November 2011 to discuss his payment. 

19. A Centrelink record dated 11 November 2011 shows that Mr Von Zum Hof contacted Centrelink on that date regarding “Review of entitlement for Austudy … End of course details notified 11/11/2011.  Customer has confirmed that they will be continuing to study in the same course in the next available semester.  […] screens both updated to show the new study details”.  There is nothing to suggest that Mr Von Zum Hof was advised that, if he did not resume study, he would acquire a debt and that an alternative was to cease austudy payment and apply for newstart allowance.

20. I am satisfied that Mr Von Zum Hof did what was required of him by contacting Centrelink and that, had the position been explained to him fully, he would not have been overpaid from that date.

    Conclusion

21. For these reasons, I am satisfied that Mr Von Zum Hof was not a full-time student during the relevant periods in 2009 and 2011 and so was not entitled to austudy payment.  However, I am satisfied that there are special circumstances by reason of which the debt for the period from 11 November 2011 to 22 February 2012 should be waived.

22.       I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member. 

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Associate

Dated 12 August 2014

Date(s) of hearing	5 June 2014
Representative for the Applicant	Self-represented
Representative for the Respondent	Ms L James, Senior Government Lawyer