Pak and Secretary, Department of Education, Science and Training
[2007] AATA 31
•22 January 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 31
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2006/42
GENERAL ADMINISTRATIVE DIVISION ) Re KINGSLEY KI-POK PAK Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, SCIENCE & TRAINING
Respondent
DECISION
Tribunal Mr A Sweidan, Senior Member Date22 January 2007
PlacePerth
Decision The Tribunal sets aside the decision under review and remits the matter to the decision maker to make a finding in accordance with the Tribunal’s determination that the debt be waived under section 1237AAD of the Social Security Act 1991 (Cth). ...........[Sgd A Sweidan].........
Senior Member
CATCHWORDS
Social Security – Austudy – debt due to Commonwealth in respect of overpayment – whether debt should be waived under section 1237AAD of Social Security Act 1991 (Cth) – special circumstances
LEGISLATION
Social Security Act 1991 (Cth) s 1237AAD
CASES
Anderson v Secretary, Department of Education, Science and Training [2006] AATA 589
Baginski v Secretary, Department of Family and Community Services [2003] AATA486
Secretary, Department of Family and Community Services v Zhang [2003] AATA 433
Boscolo v Secretary, Department of Social Security [1999] FCA 106
REASONS FOR DECISION
22 January 2007 Mr A Sweidan, Senior Member Background
1. The applicant seeks a review of a decision of the Social Security Appeals Tribunal (“SSAT”) dated 7 February 2006 to affirm the decision made by a Centrelink officer made on 29 September 2005 to raise and recover an Austudy debt of $18,636.81 due to insufficient study load in the period 8 May 2003 to 10 July 2005.
2. The background facts and relevant legislation are set out in the SSAT decision which reads relevantly as follows:
“HISTORY
1. Mr Pak was in receipt of Austudy from 5 March 2003 based on him studying full time at the Australian School of Clinical Aromatherapy.
2. On 13 March 2003 he was sent a letter about his claim for Austudy and was told that he would be paid from 5 March 2003 and that his Austudy was based on full time study. He was also told that if his study load changed or if he ceased to study he should let Centrelink know within 14 days.
3. In the period March 2003 to February 2005 Mr Pak was sent several letters from Centrelink about his Austudy. These letters included advices about his obligations to advise Centrelink within 14 days if his study circumstances changed.
4. On 29 September 2005 a Centrelink officer decided that Mr Pak’s study load was not sufficient to qualify him for Austudy in the period 8 May 2003 to 10 July 2005, apart from the period 13 June 2004 to 30 June 2004. The officer decided that Mr Pak had been overpaid Austudy amounting to $18,636.81 and this constituted a recoverable debt.
5. Mr Pak sought a review of this decision and it was affirmed by an authorised review officer on 14 December 2005.
6. Mr Pak lodged his appeal about these matters with the Social Security Appeals Tribunal on 21 December 2005.
ISSUES
7. The issues to be considered in this case are:
(a) has Mr Pak been overpaid Austudy in the period 8 May 2003 to 10 July 2005, and
(b) if so, is this overpayment a debt due to the Commonwealth, and
(c) if so, should this debt be recovered?
INFORMATION PROVIDED AT THE HEARING
8. Mr Pak attended the hearing and spoke to the Tribunal. The Tribunal was assisted by an interpreter in the Korean language.
9. Mr Pak told the Tribunal that when he first started the course it was described to him as being 50 units that required 2470 hours of study time over a period of three years. He said he was told at the time that he could study the course over a longer period.
10. He said there were two Principals at the School. One was called Eric but he has since resigned. The second Principal was Tracey Houston and she is now in charge. He said that both of them gave him the information that he could study the course over a longer period of time and he was never told that by taking longer he would not be regarded as being full time and would lose his Austudy.
11. Mr Pak said when he started studying his English comprehension was probably only about 40%. He said that it has improved since.
12. He said Eric the Principal showed him booklets about how the course was conducted and one of these booklets included information that said that the course was 3 years of full time study or 6 years of part time study.
13. Mr Pak said that he was on Newstart Allowance and spoke to Centrelink at Cannington about his study plans. He said that when he showed them the booklet they said that was fine, and he could be a full time student.
14. Mr Pak said that he had not received any of the letters from Centrelink that they said they had sent him in the period May 2003 to July 2005. He had received a letter that told him that he had been overpaid. He said that he could not understand why he would not have received these letters because he had received most other mail in his letter box and the address that Centrelink said they sent the letters to was his address at the time. Notwithstanding this, he was adamant that he had never received any of these letters and he was acting throughout on the understanding that if he took a bit longer to do the course, he would still be regarded as a full time student.
15. Mr Pak said that he only spoke to Centrelink over the phone and in the period in question he had called them twice. He said that about every 6 months they would give him a telephone call to talk to him about his Austudy.
16. Mr Pak said that he knew that he needed to advise Centrelink of any changes but he didn’t think that there were any changes because he always thought that he was studying in accordance with the arrangements that had been described to him by the Principals. He said that perhaps they told him these things because they were just trying to get people to participate in the course.
17. Mr Pak said that the second year course on muscular skeletal anatomy and professional practice took him about 16 months to complete because it was very hard work, and he thought it was sometimes beyond his ability. Even though he took 16 months and worked very hard on it he still only achieved 54% in the examination. Mr Pak said he could not progress faster but he still wanted to start the course on a full time basis and finish it on a full time basis. He thought he had done this.
18. Mr Pak told the Tribunal that this debt was currently being recovered by Centrelink at $10.00 per fortnight from his newstart allowance.
19. Mr Pak said that his health is not really very good. He said that he was a Vietnam Veteran and he suffered anxiety disorders and distress and was still under treatment. He goes to see his local doctor every 2 weeks and is undertaking medication for ulcers. This includes antibiotics and Amoxylin. He has had no counselling for his anxiety or distress in Australia.
20. Mr Pak said he was bankrupt, but was discharged in July 2005. He said that he went through a period of spending too much money and this including spending money on this course which was very expensive. He had borrowed money to undertake the course.
21. Mr Pak provided the Tribunal with documented evidence which indicated that in relation to his health, he has a referral from a general practitioner to a neurological specialist. This referral is dated 5 February 2006.
22. Mr Pak told the Tribunal that he has no other debts. He is renting a house in which he lives with his wife and 2 children who are aged 22 and 14. He has two other children aged 29 and 28. The house costs him $190.00 per week. He has a car which is worth about $1,000 and he receives newstart allowance. His wife receives parenting payment.
23. Mr Pak said that he honestly thought that he was telling Centrelink everything that they needed to know and that he was studying as a full time student. He was acting throughout on the advice of the Principals at the Australian School of Clinical Aromatherapy and even though some of the courses took him longer because they were very difficult, he still regarded himself as being a full time student. He thought that this was consistent with what was contained in all of the information that had been given to him. He said again that he had not received any letters from Centrelink in any circumstances.
24. Mr Pak said that in all of this he may have been confused with the rules, but he always acted in accordance with what he honestly believed he had been told. He was very keen to complete the course so that he could work.
DOCUMENTS
The Tribunal had access to Mr Pak’s Centrelink file and electronic records. In addition, Mr Pak provided the Tribunal with the following documents, copies of which have been placed on the Centrelink file:
·Certificates of fulfillment of requirements for Certificate II in Massage dated 24 September 2004, and Certificate IV in Clinical Aromatherapy dated 23 September 2005.
·Notes about details of the Diploma of Clinical Aromatherapy.
·A referral from his general practitioner dated to 5 February 2006 to a Neurology Clinic.
DISCUSSION OF THE EVIDENCE
26. In this case it is not in dispute that Mr Pak was in receipt of Austudy in the period 8 May 2003 to 10 July 2005 and that during this period he was being paid on the basis of being a full time student in a course at the Australian School of Clinical Aromatherapy. It is also not in dispute that the handbook for this course describes the course as being a 3 year course on the basis of full time study, and a 6 year course on the basis of part time study.
27. It is also not in dispute that even though Mr Pak was of the view that he was always a full time student, his study load during this period varied and for the majority of the period did not constitute a full time study load.
·In the period 8 May 2003 to 12 June 2004 his study load equated to 30 hours per term which was insufficient to qualify as full time study.
·In the period 13 June 2004 to 30 June 2004 his study load did equate to a full time study load.
·In the period 1 July 2004 to 24 September 2004 his study load was 30 hours which was insufficient to qualify as full time.
·In the period 25 September 2004 to 23 November 2004 his enrolment and study load was for a total of 50 hours per term and again this was insufficient to qualify as a full time study load.
·In the period 24 November 2004 to 10 July 2005 his study load equated to 50 hours per term which was insufficient to qualify as a full time study load.
28. On the basis of the above factual information, Centrelink concluded and the Tribunal accepts that for Mr Pak to have been regarded as a full time student throughout this period he would have had to have been undertaking at least 75% of a full time study load which in this case would be 119.06 hours per term. Apart from the period 13 June 2004 to 30 June 2004, he failed to meet this requirement.
29. The Tribunal noted the evidence from Mr Pak that he had not received any letters from Centrelink in relation to these matters, and in particular letters advising him that he had to advise them within 14 days if his study load changed.
30. The Tribunal accepts the evidence of Centrelink. Several letters were in fact sent to Mr Pak regarding these matters. These included on 19 March 2003, 14 April 2003, 11 November 2003, 18 December 2003, 22 March 2004, 21 September 2004, 29 September 2004, 22 November 2004, 25 November 2004 and 3 February 2005. These letters included advices to Mr Pak that if his study load changed or if he ceased to study he should tell Centrelink within 14 days of the changes. These letters containing this advice were legal notices pursuant to Section 68 of the Social Security (Administration) Act 1999, and Mr Pak did not respond to them.
31. The Tribunal noted that in all of the evidence available to it, it is apparent that Mr Pak may have been confused and misunderstood the original material that was put to him by the School and by Centrelink regarding these matters. He may also have misunderstood the contents or some of the contents of letters that were sent to him by Centrelink about these matters.
32. Notwithstanding this, the Tribunal noted in the Centrelink evidence and in evidence from the School that his spoken English is generally understandable and that he has a reasonable vocabulary.
FINDINGS OF FACT
33. The Tribunal made the following findings of fact:
·Mr Pak was in receipt of Austudy in the period 8 May 2003 to 10 July 2005,
·During this period, with the exception of the period 13 June 2004 to 30 June 2004, Mr Pak was not studying on a full time basis,
·During this period Mr Pak was forwarded several notices pursuant to Section 68 of the Social Security (Administration) Act 1999 by Centrelink requiring him to advise amongst other things of changes in his study load circumstances, Mr Pak did not respond to these legal notices.
APPLICATION OF THE LAW
34. The law relevant to this case is contained in the Social Security Act 1991 (the Act) and in the Social Security (Administration ) Act 1999 ( the Administration Act).
35. An Austudy recipient must satisfy the ‘activity test’ in order to remain eligible for Austudy and one of the ways a person can satisfy the ‘activity test’ is to undertake qualifying study. Section 569A of the Act defines undertaking qualifying study . It states:
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).
36. Full time student is defined at section 569C of the Act and states:
569C. 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.
37. In this case the Tribunal has found that Mr Pak was not a full time student for the purposes of the Act in the period 8 May 2003 to 10 July 2005, with the exception of the period 13 to 30 June 2004, and was therefore overpaid Austudy amounting to $18,636.81.
38. The Tribunal then considered whether this overpayment is a debt due to the Commonwealth.
39. Section 1223 of the Act contains provisions that overpayments of Austudy are debts due to the Commonwealth and these are recoverable from the person who received the overpayments. Further, subsection 1223(1) of the Act says that if the person who receives the payment was not entitled to this payment for any reason, then the amount of the payment is a debt due to the Commonwealth by that person. The debt arises when the person receives the payments.
40. In this case it is clear that, consistent with the provisions of section 1223 of the Act, Mr Pak has been overpaid Austudy in the period in question, and this overpayment is a recoverable debt due to the Commonwealth.
41. Having found that the overpayment made to Mr Pak is a debt due to the Commonwealth, the Tribunal then considered whether any part of the debt should be waived pursuant to section 1237A of the Act. This section provides that recovery of a debt may be waived where the payments that gave rise to the debt were received in good faith, and the debt was attributable solely to administrative error made by Centrelink.
42. In this case the Tribunal cannot conclude that the overpayment of Austudy arose solely due to administrative error made by Centrelink. The Tribunal concluded that Mr Pak failed to respond to legal notices sent to him by Centrelink, and which required him to notify Centrelink within 14 days if, amongst other things, his study load circumstances changed. He did not respond to any of these notices, and the Tribunal is therefore satisfied that the overpayment of Austudy was not solely attributable to administrative error on the part of Centrelink. The Tribunal could not therefore apply the waiver provisions of Section 1237A of the Act in these cases.
43. The Tribunal then considered whether recovery of the debt might be waived under Section 1237AAD of the Act. For this to occur the Tribunal must satisfy itself that the debt did not result wholly or partly from the debtor or another person knowingly making a false statement or false representation, or failing or omitting to comply with provisions of the Act or the 1947 Act, and further that there are special circumstances (other than financial hardship alone) that make it desirable to waive the debt. In addition, the Tribunal must be satisfied that it is more appropriate to waive than to write off the debt, or part of the debt.
44. The Tribunal was satisfied that Mr Pak did not knowingly fail or omit to comply with the legislation, and the Tribunal accepts that he honestly believed that he was studying full time and that Centrelink were in possession of all of the information that they required about his course and his study load.
45. In considering the matter of special circumstances the Tribunal was guided by decisions of the Federal Court which, amongst others, have afforded a consistent interpretation of what is meant by “special circumstances”.
46. In the case of Beadle v Director-General of Social Security (1985) 60 ALR 225 the Full Federal Court held that it was not possible to lay down precise rules but rather, a consideration of special circumstances would depend upon the facts of the case. Justice Kiefel said in Groth v Secretary, Department of Social Security (1995) 40 ALD that special circumstances would require something “to take it (the case) out of the usual or ordinary case”. In Dranichnikov v Centrelink (2003) FCAFC 133 the Full Federal Court held that for a finding of special circumstances to be made “what is required will be circumstances which distinguish the case in consideration from the usual case. There will be a requirement that the circumstances are such that takes the case out of the ordinary”.
47. The Tribunal acknowledges that Mr Pak may have misunderstood or misinterpreted letters and information he received about his study load from the School and from Centrelink. However, these circumstances, along with Mr Pak’s financial and other day to day living and health circumstances, are not such that they could be regarded as special for the purposes of waiving the debt pursuant to section 1237AAD of the Act.
48. The Tribunal then considered whether the debt should be written off pursuant to section 1236 of the Act. Under section 1236 a debt may be written off for a period of time and be recovered at a later date if, amongst other things, a person has no capacity to pay the debt at the present time. In this case the Tribunal noted that the debt is presently being recovered by withholdings from Mr Pak’s newstart allowance at $10.00 per fortnight, and he has the capacity to repay the debt. Therefore, write off of the debt pursuant to section 1236 of the Act is not appropriate.
49. In all of these circumstances, the Tribunal decided to affirm the decision under review.
Proceedings before the administrative appeals tribunal
3. At the hearing before the Tribunal the applicant gave evidence and essentially repeated the evidence which he had given to the SSAT, and also confirmed the substance of what is set out in his representative’s submissions as set out in paragraph 5 below insofar as the facts related therein are concerned. The Tribunal finds the applicant to be a credible witness and his evidence was not shaken in cross-examination.
4. While the applicant did not wish to concede that there had been an overpayment and consequently that there is a debt due to the Commonwealth, his representative nevertheless did not dispute this, and argument was confined to the question of whether the debt should be waived under s 1237AAD of the Act.
5. The applicant contended that this is a matter where there are special circumstances as contemplated by s 1237AAD and in support of this contention the applicant set out the following submissions:
“Special Circumstances
The applicant says that his lack of experience with the educational system, his limited understanding of the English language, the nature of the course, the information and guidance he received from the Institution together with his health and financial problems constitutes a case of Special Circumstances.
Lack of Experience with Education System
The Applicant says that he had not formal experience with the Australian educational system and in particular he had never been on a student income support payment before. He simply followed to the best of his ability what he was told by the Institution.
Limited English Language Skills
The Applicant arrived in Australia from South Korea in 1979 and spent most of the time working in the Mine sites in Paraburdoo. He later set up his own business until he became bankrupt in 1995. His knowledge of the English language is limited when it comes to dealing with more complex instructions, scientific terms and academic expectation.
The Authorized Review Officer stated that his English is understandable [T20:143]. However, the Applicant says that he experienced problems in fully understanding complex terms used and the sounds of words. He is certainly not as conversant with the English language as a person who is born and raised in Australia.
The Applicant says that his level of knowledge and comprehension of the English language is a contributing factor in understanding all the intricacies involved between him and the Institution as well as other agencies. He relied on his understanding of what he was being told by the ASCA Academic personnel.
Tracey Houston, the Principal of ASCA stated in her letter of 11th February 2005 that “As English is Kingsley’s second language, there seems to have been a misunderstanding between our staff and Kingsley. [ A – 2 ].
Nature of the Course
There are no barriers to entry requirements for this course. No educational requirements and flexible delivery.
The Applicant’s understanding was that there was no rush to complete course as he was told by ASCA that “there was no time limit to complete the course” and that “the course was home based”.
The nature of the course was such that the student can study at their own time at home or watching videos at School. Flexible learning and self paced. Students are able to set their exam date [ T15:120 ].
Flexible delivery is not clearly defined and may have contributed to the Applicant’s interpretation that he can study at his own pace. Hence believing that he was still a full time student.
The Applicant says that the understanding given to him was that studies are done mostly (70%) at home based or by correspondence. Class contact was only for practices and this constituted about 30%.
In addition, the Applicant says that there were delays in receiving manuals from Sydney where he recalls waiting for two months. There were also delays in finding placement for his practicum. No places available to do his Clinics. Other times some Units did not run due to not having enough students.?
Course Structure
There was no formal course structure and he enrolled on verbal instructions. There was no schedule. Some of the units were not running and there were delays to get started.
The Applicant relied on what he was being advised by the School staff. Mix ups in units occurred which contributed to the confusion. The course was not formally organised and lacked proper structure for students to follow. The Applicant says that the Institution did not know at times what was going on and consequently he may have been misled.
Lana Paull for the Principal stated in her letter of 28 October 2004 that “The confusion seems to be that students are under the impression that they are enrolling in the Certificate II…. In fact they are enrolling in certificate IV or Diploma.” She ended the letter apologising for “mix up” [ T13: 111; A-1].
There appears to be no set programme for this course. Most courses have a set of subjects to be completed by semester I. Then semester II and so forth. However, this Institution seemed to have run the course ad hoc. The Applicant experienced delays in finding a Clinic where he could practice and obtain experience under Professional supervision. These factors have contributed to the lack of clarity about study progress and status.
The Principal, Tracey Houston in her response to the Authorized Review Officer’s request for information admitted that “she had no term dates for the years 2003 and 2004. Only for 2005”. [ A – 3 ]. This an indication of the lack of course structure and vagueness on how the course was run.
The Applicant also says that not all units were available at ASCA so he had to look to other Institutions to complete (eg Massage, Human Nutrition, and First Aid)? [ T8: 59 ]. More details about A1F Certificates attached [ A – 14].
In Re Baginski and SDFACS (2003) the Administrative Appeals Tribunal commented in (par. 16) about the question of what constitutes a normal full-time study and stated that “whether a student is undertaking at least 75% of the full-time load in a self-paced course of the type in question in this case, regard should be had to the schedule of submission dates determined by the Institution in question (i.e. AIPC)”. The Applicants says that he does not recall being advised that he was falling behind his studies and that, as far as he was aware, there was no schedule.
In Re SDFaCS & Zhang [2003] the Administrative Appeals Tribunal examined the circumstances leading to an Austudy overpayment and reasons for reducing the academic workload. “Mr Zang had spoken to a female administration officer at University who had advised him that he “could rearrange his subjects provided he maintained a minimum of 36 credit points in the 52 week enrolment period.” [Para. 16]. The Tribunal found that “Mr Zhang relied on the advice of a University administrative officer in making the variation, sought to notify Centrelink, albeit unsuccessfully, of the variation, and believed himself to continue to be a full time student in spring session 2001.” [para. 43]
Difficult Childhood
The Applicant says that he experienced great difficulties during his early years. The Korean War impacted in his life in a dramatic way when he was only 4 years old. His parents separated and divorced. He became a victim of harassment and abuse when he was 7 years old.
The Applicant says that the scars arising from his childhood experiences have marked him for life. This is the reason for feeling often unhappy and angry.
The Vietnam War
The Applicant actively participated in direct combat in Vietnam between 1968 and 1972. He was a black braided soldier and his task was to kill people. He was flown by helicopter into the jungle to launch attacks on the enemy soldiers.
The Applicant says that from forced landings and jumping off the helicopter he has now discovered physical problems with his knees and legs. These are only some of the physical effects stemming from the strenuous physical exercise. These are of concern in themselves but, what most concerns him is the mental harm he suffers as the result of literally “killing people” in the fields.
On 16 July 2001, the Applicant applied for a Service Pension from the Department of Veterans’ Affairs. He was assessed for a number of disabilities including: cervical spondylosis, joint pain, bilateral tinnitus... Dr Gary Spurge of Herald Avenue Family Practice made a Combined Medical Assessment. [A - 9]
The Applicant says that he has kept under control the effects of the War. He was young and enthusiastic with attaining different goals in his life: Getting married, migrating to Australia, working hard and saving money and later setting up his own business. However, after the collapse of his business forcing him into bankruptcy and increasing financial pressures along with health deterioration, he says that the real effects have now began to show in his personal life.
The Applicant says that having been actively involved in raising a family, working hard to have his own business and meeting his life goals has enabled him to cope in one way. But at the same time it has been a way of avoiding unpleasant memories of the past and as a therapeutical means to help him cope with his trauma and depression.
The Applicant says that he has difficulties in reconciling his sleep and often only sleeps about 3 hours. He also has nightmares of the War scene. He hears the helicopters and the shootings. He sees people dying and is afraid.
The Applicant experiences a number of health problems and personal stress, including:
Mental health/anxiety disorder/PTSD
Panic Attacks;
Depression;
Stress;
Financial Hardship;
Lack of assets;
Lack of savings;
No employment prospect due to age.
Ill Health
The Applicant suffers from a number of health conditions associated with his direct combat experience in Vietnam War including: Post Traumatic Stress Disorder, Anxiety Disorder and Panic Attacks.
Post Traumatic Stress Disorder
Dr Kenneth Jones from Reynolds RD Medical Centre has listed in his recent Medical Report (April 2006), a list of the Applicant’s medical conditions. One such condition is Anxiety Disorder; which Dr Jones described as “Episodes of panic. Flushes. Feels nervous. Dizziness. Blurred vision. Over emotional. Feelings of insecurity. Easily fatigued. Mental sluggishness.” [Please refer to Dr Jones Report Appendix A- 4]
Dr Jones listed among other medical conditions: musculoskeletal Symptoms affecting his lower back, leg and thigh pain and leg weakness; Abdominal Pain; Tinnitus; Eczema; Heart palpitations/chest tightness; Shortness of Breath; Insomnia and depression.
Dr Jones concludes the report by stating that “The majority of this patient’s plethora of symptoms is almost certainly related to an anxiety disorder with severe somatisation. His condition may be related to post traumatic stress disorder as a result of active service in Vietnam.”
The publication made by The Australian Centre for Posttraumatic Mental and Veteran’s Affairs (1999) classifies common symptoms of PTSD under three headings: Intrusive Symptoms; Avoidance Symptoms and Arousal Symptoms. Some of the described common symptoms include “nightmares, heart racing, anxiety, depression, and so on [A – 10].
Dr Jones was attempting to “assess him for organic disease” to determine the source of his PTSD and depression. On 31 January 2006 he made a referral to the Fremantle Hospital to be assessed by a Specialist in Neurology [T21:151]. Also refer to a recent attendance at the Emergency Department [A – 7].
The Applicant has since learnt that he has been placed on a waiting list and that being a Public Hospital there is wait of about 18 months before they are able to see him.
At the Conference on 10 April 2006, the Conference Registrar suggested alternative services through RSL or Hollywood Clinic in order to avoid the long waits for proper assessment.
The Applicant and his advocate made subsequent enquiries to these service providers in order to organise an appointment with a Psychiatrist. The Hollywood Clinic offered him an early appointment. However, the issue then was that the Applicant did not have the money to pay for the assessment and/or the report.
The Applicant sought assistance from the RLS and they suggested that he obtain a referral from his Doctor to see Dr Oleh Kay, a Psychiatrist in Applecross [A - 6]. Please refer to referral letter by Dr Dale Allen dated 1 May 2006. Dr Allen stated in his referral letter that “He predominantly has a depressive and anxiety symptoms and PTSD related to previous service in Vietnam.” [A -5].
Mrs Rowland from The Returned & Services League of Australia has been trying to obtain funds to pay for the Psychiatric Assessment. The Applicant hopes to receive funds to enable him a proper Specialist Assessment of his psychological conditions.
The Applicant also sought assistance from The Vietnam Veteran Counselling Service. However, he was advised by a Counsellor that he would not be entitled to this service because he is not an Australian Veteran.
On 30 May 2006, his advocate contacted the Vietnam Veteran Counselling Service (Telephone 1800 011 046). A Senior Psychologist confirmed that the service is free but for Australian Veterans and eligible family members only. The Service does not cater for soldiers of Allied Forces such as Korea.
On 17 May 2006, The Applicant was admitted at the Emergency Department at Fremantle Hospital as he was experiencing shortness of breath and palpitations at night. The diagnosis was PSYCHIATRIC – ANXIETY. Jennifer Graham Taylor of the Emergency Department states in her report to his General Practitioner that “there is a significant anxiety component to his symptoms” [A – 7].
On or about 24 May 2006, the Applicant responding to a Report titled “Vietnam Veterans still at war” from ASIST by Paul Murray published in “West Australian, Saturday May 20, 2006. He contacted Lifeline for assistance and they placed his name in the wait list.
The above Report discussed the ‘high risk of suicide’ among the Veteran population. Sam Cross, the President of Partners of Veteran’s WA and co-ordinator of ASIST said “last year in a five-week period, three of our partners lost their husbands.” The Report concluded by mentioning “A Federal Government health study of 40,000 Vietnam Veterans in 1998 found 30% reported experiencing panic attacks, 31% PTSD; 41% suffered anxiety disorders and 45% depression.” [A - 8]. For more details, please refer to “The (PTSD) and War related Stress” Booklet” enclosed.
The point here is that anecdotal evidence suggests that it is common to war veterans to experience PTSD, anxiety and depression. These symptoms are precisely what the Applicant is experiencing according to his GP and Fremantle Hospital.
In August 2006, Dr Tan from Reynolds Road Medical Centre referred the Applicant to the Bentley Research Anxiety Clinic. On 23 August 2006, Dr Hood interviewed the Applicant and made an assessed his medical conditions.
Dr Hood diagnosed him as suffering from a number of conditions including Post Traumatic Stress Disorder Syndrome now called “Panic Disorder”. Dr Hood states in his report that “The causes of this are multifactorial and include his biological, childhood, physical mistreatment, the Vietnam War… and more recent events such as the bankruptcy and difficulties with Centrelink.”
Dr Hood concluded that “It is undoubted that Mr Pak’s war experience has predisposed him to mental illness and is a causative factor in his current clinical scenario.” Dr Hood also indicated that the symptoms described would be fully congruent with difficulties in progressing with a full time study load.” [Please refer to a copy of Dr Hood’s report dated 28 August 2006 [A -12].
Severe Financial Hardship
The Applicant was registered for bankrupt twice in 1995? and On 10 April 2002. His ITSA bankrupt estate number is: WA640/2/9 [T8:65].
In 2003 he was unemployed and to study Aromatherapy appealed to him as an opportunity to improve his employment prospects. The course cost him about $3,895 and in the end he discovered that he has a large overpayment of over $18,000.
The Applicants current minimum weekly living expenses are as follows:
Food $180.00
Rent$190.00
Electricity $ 30.00
Water consumption $ 3.00
Telephone $ 17.00
Petrol $ 30.00
Car Registration $ 7.00
Car service/repairs $ 15.00
Household cleaning $ 5.00
Clothing $ 20.00
Shoes $ 10.00
Personal hygiene $ 5.00
Haircuts $ 5.00
Medicines $ 20.00
Education expenses $ 10.00
School activities $ 8.00
Lunches $ 24.00
Entertainment $ 15.00
Parking $ 5.00
Centrelink repayment $ 10.00
Total $607.00 p.w. or $1218.00 per fortnight.
The Applicant and his wife are currently in receipt of Newstart Allowance at the fortnightly rate of: $360.00 himself; $360.00 his wife and $270 of Family Tax Benefit. Plus rental assistance $118.00. Total fortnightly income $1,108.00.
Current outstanding are: $18,636 to Centrelink; $3500 Financial Loan to DEET. The Applicant has no savings and no assets apart from an old car and essential household furniture.
Relevant Cases
In Re Anderson & SDEST (2006) the Administrative Appeals Tribunal examined an Austudy debt and the way it arose. Mr Anderson told the Tribunal that “he had completed the Austudy application form on the basis of his knowledge at the time”. He further stated that “he did not understand the Austudy qualifications requirements when he completed the form”.. and that “his evidence was that he did not understand the meaning of university terminology at the time.” [para 19].
The Tribunal found that “Mr Anderson was entitled to rely and act upon the information and advice by Mr Neal an agent for a Job Network Member…. That is what he did.”para.29. In the present case, the Applicant completed the Austudy claim form with the information that ASCA provided to him at the time. He wrote on the claim form the information that the Principal had given him including: “25 hours per week” [ T4:37 ] and his understanding that the course was “full time” [ T4:45 ].
The Applicant says that he actually spent an estimate of 40 hours per week studying at home. He says that often he dedicated up to 5-6 hours per day hours during 6 days per week. On occasions, he studied up to 10 hours a day. He believed that as long he did more than 25 hours per week he was doing full time studies. He was continuously studying.
The Applicant says that he provided all information about the course, study details and ASCA’s contact number to the best of his ability at the time. He even wrote “PS: If you want more details, please contact Principal. Eric Arhur” at ASCA… “phone 9470-4770” [T4:23]. The Applicant says that Centrelink was in possession of all the information at the granting of his claim.
On 13 March 2003, a Centrelink officer assessed his claim and granted the payment. Student New Claim Action Sheet [T4: 49] suggests that Institution’s code was entered as 6P065. However, it is not clear whether Centrelink verified the Applicant’s status and/or course detail with ASCA at the time the claim was determined.
The Tribunal found that “There is an onus on Centrelink to properly determine a claim in accordance with applicable law” (para.58) and stated that “It follows that Centrelink did not verify Mr Anderson’s status as a student or details of the course he was enrolled.”(para.59). The Tribunal concluded that “recovering the debt, in full, will produce a result that is unjust, harsh and manifestly unfair.”(para.70).
The Tribunal decided that “special circumstances” existed to make it desirable to waive the balance of Mr Anderson’s debt.” (para. 75) The Applicant says that this case is relevant to his circumstances and that he is entitled to rely on the Principals’ advice as an authority of the Institution.
In Re Zhang supra The Tribunal was of the view that “the circumstances leading to the overpayment were sufficiently unusual to make them “special “-.. The Tribunal’s view was that “it would be unfair to recover a debt from Mr Zhang. He is totally reliant on Social Security benefits for his income and has no assets other than his car, his computer and household goods.”
In the above case the Tribunal took into account the theft and torch of Mr Zhang’s car as an event which brought a lot of stress to the student and his family. The Tribunal found that Mr Zhang owed a debt to the Commonwealth but waived the recovery of the debt pursuant to s1237AAD of the Act because of the special circumstances [ Para.44 ].
In Re Baginski and SDFaCS (2003) she believed that so long as AIPC was happy with her progress (and as far as she knew that was always so) then she would be satisfying all of the requirements of Centrelink in relation to her eligibility for Austudy. She was aware of her obligations to notify of changes of enrolment but at no time did she believe that she had to notify anything to Centrelink because, so far as she was concerned, the nature of her enrolment had not changed and AIPC was keeping Centrelink informed.
The Tribunal considered whether there were special circumstances in Ms Baginski’s case and accepted that “ her uncontradicted evidence that at all times she had believed that her status with AIPC was as a full-time student and that she was, accordingly, a full-time student for Centrelink's purposes also.” The Tribunal also noted that “… the fact that AIPC had informed Ms Baginski that she was a full time student was enough to make her circumstances “extraordinary and unusual”.(Para 35.)
Ms Baginski believed that “so long as AIPC was happy with her progress (and as far as she knew that was always so) then she would be satisfying all the requirements of Centrelink in relation to her eligibility for Austudy.” (para.28)
In Ms Baginski’s case the Tribunal concluded that “special circumstances existed in relation to the part of the debt for the period 21 December 1999 to 5 July 2001 and this part of the debt was waived.”
The relevance to the Applicant’s case is that the Institution (ASCA) was happy with his progress and assured him that he was fulfilling the requirements of a full time student. There is no evidence from the Institution that they were not happy with his progress.
The Applicant says that he honestly believed that he was studying full time and that he was entitled to Austudy until the Diploma course was completed. He received the payment in good faith.
In Re Boscolo & SDSS (1999) FCA Justice French examined the requirements for “special circumstances” or “special reasons” referring to the need to be something unusual or different to take the subject of the discretion out of the ordinary. Justice French concluded that “it does not require that the case be an extreme case” (But that does not require that the case be extremely unusual, uncommon or exceptional –)
The Applicant says that the totality of his circumstances is sufficient to invoke the discretion under s1237AAD.
Contentions
The Applicant says that the Australian School of Aromatherapy reassured him that he was a “full time student” at all times. Every time he asked the Principal or staff about his studies they answered.”You don’t have any problem” [T19:139].
The Applicant contends that he was led to believe at all times that he was a full time student. The Institution regarded him a full time student. It is important to note that had always thought of himself as a full-time student. He studied continuously, completed a substantial amount of the course work and passed as many Units as he was able to do (and those which were available ) [ T8:61 ].
The Applicant says that he did not knowingly fail to comply with his obligation with the Act.
The Applicant says that had he become aware that he was not entitled to the Austudy payments he would have gone strait away to Centrelink to revert his benefit for Newstart Allowance as he had been before. However, he saw no reason to report as he always had a genuine belief that he was being a full time student.
The Applicant says that his main intention to study this course was in the hope to increase his employment prospects. Instead, as he later discovered he has impoverished himself by having to pay $3,895 in fees, plus other costs, incurred an $18,637 debt and having all these hassles with Centrelink plus a Financial Assistance Loan of $3500 due to DEET.
The Applicant says that it is unreasonable that he has now to repay such a big debt. That the recovery of this debt will produce a result that is unjust and harsh.
The Applicant submits that the circumstances leading to the overpayment and his particular personal inexperience and language limitation are important factors that, when taken together with all his other circumstances of ill mental health arising from the traumas of the Vietnam War and his subsequent life events are in themselves unusual circumstances.
The Applicant submits that his case is special enough to invoke the provisions under s1237AAD of the Act. The Applicant is seeking waiver of the whole debt because of his special circumstances.
The Applicant says that he provided Centrelink with all the information about his studies as stated above. Furthermore, he recalls telephoning Centrelink during August and December 2003 to give an update with his studies and an officer called him in July and then in December 2004 to check how he was doing. He understood that everything was fine.
Centrelink conducted reviews from time to time and the Applicant believed that the Institution was in communication with Centrelink regarding his studies. According to a document recently revealed it appears that on 16 October 2003 a data match with ASCA was conducted. Tracey Houston the Principal signed such document and noted “N” suggesting the Applicant was not a full time student. If this is confirmed to be correct it constitutes administrative error as Centrelink continued to pay Austudy [A – 13].
As stated above, the Applicant is primarily seeking waiver of the whole debt due to the special circumstances of his case. In the alternative, the Applicant says that there should be no debt from the date of the data match (16 October 2003) onward, as this debt occurred due to administrative error [A – 13]. “
The Tribunal’s Findings
6.The Tribunal finds that:
(a)the applicant was overpaid Austudy in the period 8 May 2003 to 10 July 2005 in the sum of $18,636.81;
(b)the overpayment is a debt due to the Commonwealth; and
(c)the debt should be waived under s 1237 AAD of the Act because:-
(i)the debt did not result wholly or partly from the applicant or another person knowingly making a false statement or false representation or failing or omitting to comply with provisions of the Act or the 1947 Act;
(ii)there are special circumstances (other than financial hardship alone) that make it desirable to waive the debt; and
(iii)it is more appropriate to waive than to write-off the debt or part of the debt.
7. In the Tribunal’s view the special circumstances which apply for the purposes of s 1237 AAD are the following:-
(a)the applicant’s lack of experience with the Australian educational system, his limited understanding of the English language, the nature of the course, the information and guidance he received from the institution together with the incorrect information provided to him by that institution; and
(b)the applicant’s mental and physical health conditions and poor financial circumstances as set out in the applicant’s submissions detailed earlier.
Decision
8. The Tribunal sets aside the decision under review and remits the matter to the decision maker to make a finding that the debt should be waived under the provisions of section 1237 AAD of the Social Security Act 1991 (Cth).
I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Mr A Sweidan, Senior Member
Signed: ......[Sgd Y Maker]......
AssociateDate/s of Hearing 23 October 2006
Date of Decision 22 January 2007Representative for the Applicant Mr A Gonzalez
Representative for the Respondent Mr A Holt
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