Panagakis and Secretary, Department of Family and Community Servi Ces
[2004] AATA 235
•9 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 235
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/658
GENERAL ADMINISTRATIVE DIVISION ) Re THEODORE PANAGAKIS Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr I R Way, Member Date9 March 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
….……(Sgd)…….
IR Way
Member
CATCHWORDS
SOCIAL SECURITY – benefits and entitlements – debts – Applicant in receipt of Youth Allowance to which he was not entitled – whether debt should be waived – whether special circumstances exist – whether the debt should be offset by an entitlement to Newstart Allowance
Social Security Act 1991 Part 2, s 23, 540, 541, 541B, 543, 543B, 1223, 1237A, 1237AAD
Social Security (Administration) Act 1999 s 12, 15, 237Acts Interpretation Act 1901 28A, 29
Re Moon and Secretary, Department of Family and Community Services [2003] AATA 676
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Beadle v Director-General of Social Security (1985) 7 ALD 670
Secretary, Department of Social Security v Hales (1998) 153 ALR 259
Re Secretary, Department of Social Security and McAvoy (AAT 11263, 26 September 1993)
Groth v Secretary, Department of Social Security (1995) 40 ALD 541REASONS FOR DECISION
9 March 2004 Mr I R Way, Member 1. This is an application by Theodore Panagakis for review of a decision of the Social Security Appeals Tribunal (SSAT), dated 9 July 2003, which affirmed a decision of Centrelink made on 16 December 2002 to raise and recover a Youth Allowance debt of $5,357.69, covering the period 23 April 2002 to 15 November 2002.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T22) and other documentary evidence as follows:
§ Exhibit R1 Claim for Youth Allowance Form dated 28 March 2002
§ Exhibit R2 Rent Certificate dated 3 April 2002
§Exhibit R3 Gold Coast City Council letter to Centrelink dated 3 February 2004
3. The Tribunal also received and marked as Exhibit R4 the Secretary’s Statement of Facts and Contentions.
4. The Applicant was self represented and was assisted in the hearing by his mother, Mrs B Panagakis. Both the Applicant and his mother gave oral evidence. Ms J Dwyer represented the Respondent.
Background Facts
5. There is no dispute between the parties about the background facts in this matter and the Tribunal finds as follows:
(a)Mr Panagakis lodged a claim for Youth Allowance on 28 March 2002 on the basis that he was a full-time student at the Wynn-Hoelscher Academy.
(b) Mr Panagakis withdrew from his studies on 23 April 2002.
(c)Mr Panagakis was granted Youth Allowance on 25 May 2002 and was paid from that date, including arrears from the date of claim.
(d)Mr Panagakis was given a notice of grant by Centrelink dated 25 May 2002, which informed him that he was recorded as studying full-time and required him to advise within 14 days if he ceased study.
(e)Mr Panagakis has stated that he contacted Biggera Waters Centrelink office by telephone between mid-May to the end of May 2002.
(f)Centrelink records do not indicate that Mr Panagakis advised of his withdrawal from studies until 18 November 2002 when he contacted Centrelink to advise he had commenced work.
(g)All accesses to Mr Panagakis’ computer record were recorded by a customer record access monitor report covering the dates from 1 April 2002 to 15 November 2002.
(h)Mr Panagakis turned 21 on 6 May 1998.
(i)Mr Panagakis did not lodged a claim for any other alternative payment during the overpayment period.
(j)Mr Panagakis was in receipt of Newstart Allowance for a period in 2000 and 2001.
Issues
6.The issues in this matter are:
§ Whether the Applicant received Youth Allowance to which he was not entitled and if so how much;
§ Whether a recoverable debt exists and if so:
-whether the debt should be waived;
-whether the debt should be offset by any entitlement to Newstart Allowance;
Legislative Framework
7. This matter is to be determined within the provisions of the Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999 (the SSA Act) and the Acts Interpretation Act 1901 (the Interpretation Act).The relevant sections of the Act are as follows:
“Qualification for youth allowance—general rule
540 Subject to this Subdivision, a person is qualified for a youth allowance in respect of a period if:
(a) either of the following applies:
(i)throughout the period the person satisfies the activity test (see Subdivision B) or is not required to satisfy the activity test (see Subdivision C);
(ii)the person is a CDEP Scheme participant (see section 1188B) in respect of the period;
(b)throughout the period the person is of youth allowance age (see Subdivision D); and
(c)throughout the period the person satisfies any requirements relating to Youth Allowance Activity Agreements that apply to the person under Subdivision E; and
(d)throughout the period, the person:
(i)is an Australian resident; or
(ii)is exempt from the residence requirement within the meaning of subsection 7(7).
Notices that are taken to be given but are not received
23.(12) If:
(a)section 237 of the Administration Act applies to a notice of a decision under this Act; or
(b)sections 28A and 29 of the Acts Interpretation Act 1901 apply to a notice under this Act;
section 237 of the Administration Act, or sections 28A and 29 of the Interpretation Act, as the case may be, apply, to the notice even if the Secretary is satisfied that the person did not actually receive the notice.
Activity test
General
541(1) Subject to section 541A and subsection (3) of this section, a person satisfies the activity test in respect of a period if:
(a)the person satisfies the Secretary that, throughout the period, the person is undertaking full-time study (see section 541B); or
…
Undertaking full-time study
General
541B(1) For the purposes of this Act, a person is undertaking full-time study
if:
(a) the person:
(i) is enrolled in a course of education at an educational institution; or
…
Youth allowance age
543 For the purposes of this Part, a person is of youth allowance age if the person:
(a)has attained the minimum age for youth allowance (see section 543A);
and
(b)has not yet attained the maximum age for youth allowance (see section 543B).
Maximum age for youth allowance
General
543B(1) Subject to subsection (2), the person has attained the maximum age for youth allowance if:
…
(c) the person is undertaking full-time study and is at least 25 years old.
Debts arising from lack of qualification, overpayment etc.
1223.(1) Subject to this section, if:
(a)a social security payment is made; and
(b)a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;
the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.
Waiver of debt arising from error
Administrative error
1237A(1) Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.
Waiver in special circumstances
1237AAD 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 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..”
8.The relevant sections of the SSA Act are:
“Certain transfers between payments
12.(1) Subject to subsection (3), if:
(a)a person is receiving an income support payment; and
(b)while receiving the payment, the person becomes qualified for another income support payment (the other payment); and
(c)the Secretary determines that the person is to be transferred to the other payment;
the person is taken, for the purposes of the social security law, to have made a claim for the other payment on the day on which the person became qualified for the other payment.
12.(2) Subject to subsection (3), if:
(a)a person who has been receiving an income support payment ceases to receive the payment; and
(b)immediately after ceasing to receive that payment, the person becomes qualified for another income support payment (the other payment); and
(c)the Secretary determines that the person is to be transferred to the other payment;
the person is taken, for the purposes of the social security law, to have made a claim for the other payment on the day on which the person became qualified for the other payment.
12.(3) The Secretary may only make a determination under subsection (1) or (2) if the transfer is one that the Secretary could have determined should occur apart from this section.
Deemed claim—incorrect or inappropriate claims
15.(1) For the purposes of the social security law, if:
(a)a person makes an incorrect claim; and
(b)the person subsequently makes a claim for another social security payment for which the person is qualified; and
(c) the Secretary is satisfied that it is reasonable that this subsection be applied;
the person is taken to have made a claim for that other social security payment on the day on which he or she made the incorrect claim.
15.(2) For the purposes of this section, a claim made by a person is an incorrect claim if:
(a)the claim is for a social security payment, other than a supplementary payment; and
(b)when the claim was made, the person was not qualified for the payment claimed but was qualified for another social security payment.
Notice of decisions
237.(1) If notice of a decision under the social security law is:
(a)delivered to a person personally; or
(b)left at the address of the place of residence or business of the person last known to the Secretary; or
(c)sent by prepaid post to the postal address of the person last known to the Secretary;
notice of the decision is taken, for the purposes of the social security law, to have been given to the person.”
9.The relevant provisions of the Acts Interpretation Act are as follows:
Service of documents
28A(1) For the purposes of any Act that requires or permits a document to be served on a person, whether the expression "serve", "give" or "send" or any other expression is used, then, unless the contrary intention appears, the document may be served:
(a) on a natural person:
(i) by delivering it to the person personally; or
(ii)by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; or
(b)on a body corporate—by leaving it at, or sending it by pre-paid post to, the head office, a registered office or a principal office of the body corporate.
28A(2) Nothing in subsection (1):
(a)affects the operation of any other law of the Commonwealth, or any law of a State or Territory, that authorizes the service of a document otherwise than as provided in that subsection; or
(b)affects the power of a court to authorize service of a document otherwise than as provided in that subsection.
Meaning of service by post
29(1) Where an Act authorizes or requires any document to be served by post, whether the expression "serve" or the expression "give" or "send" or any other expression is used, then unless the contrary intention appears the service shall be deemed to be effected by properly addressing prepaying and posting the document as a letter, and unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.
29(2) This section does not affect the operation of section 160 of the Evidence Act 1995. “
Applicant’s Evidence and Submissions
10. Mr Panagakis told the Tribunal that he was born in Australia on 6 May 1977 and attended school until he started work when he was about 16. He said he had started work in the food industry and was employed at the present time in this industry, grossing approximately $400 per week remuneration.
11. He said he had attempted to gain qualification as a hairdresser by enrolling full-time in the Wynn-Hoelscher Academy in Brisbane in early 2002 but after a month of the course found that he was not coping with the theoretical elements of the course and ceased his enrolment on 23 April 2002. He said that he was currently living at his parent’s home at Coomera and was living there at the time of his enrolment at the Academy. He found travelling to Brisbane onerous. He confirmed that his postal address at the time was Post Office Box 1176, Southport 4215. This is still his current postal address. It was Mrs Panagakis’ evidence that she usually collected the mail from the Post Office box and that in addition to this some mail found its way to where they lived at 301 Reserve Road, Coomera. She said they lived on “acreage” and that mail was delivered irregularly to her home (as well as her Post Office box). She said the mail could be unreliable and both she and Mr Panagakis said they were aware of instances where expected mail had not arrived or where mail was incorrectly addressed to them.
12. Mr Panagakis said he lived in what he described as a granny flat at his parent’s home. Mrs Panagakis described the flat as self contained and that she occasionally provided her son with light refreshments. In cross-examination, Mr Panagakis was taken to his claim for Youth Allowance (Exhibit R1) where in respect of accommodation, at questions 7 and 9, he stated that he paid $100 weekly for shared accommodation with George and Bronwyn Pakis, who he described in his claim as “friends” and owners of the property. When it was put to Mr Panagakis that his answer to question 9 was false, Mrs Panagakis said she and her husband used the name Pakis on occasions. She stated that at the time there were difficulties in the relationship between her and her son, which she (and her husband) were attempting to overcome. This explained why her son had referred to her and her husband as friends under the name Pakis.
13. When asked why he thought Centrelink’s decision was wrong, Mr Panagakis commented as follows:
(a)That he had initially applied for Youth Allowance on the advice of the Academy.
(b)That again on the advice of the Academy, when he ceased study and when his refund cheque came through from the Academy, he had contacted Centrelink by telephone towards the end of May to tell them that he was no longer studying.
(c)That he was not able to recall what he told Centrelink or who he spoke to but could recall that he called a 1-3 number and had discussed for a short time with the Centrelink Officer that he had ceased study and that the Centrelink Officer had said that he would send something in the mail. It was Mr Panagakis’s evidence that he felt he had done his part and that further action was in the hands of Centrelink. He said he had not received anything from Centrelink in response to his telephone call.
(d)That he had a savings account with the ANZ Bank into which his Social Security payments were paid and that he received regular bank statements and he was aware of receiving Youth Allowance payments in 2002.
(e)That he was not knowledgeable about Social Security payments and he thought that his continued payment of Social Security benefits was appropriate as he was unemployed for some months after ceasing full-time study. In essence Mr Panagakis said he thought that while he was unemployed, Youth Allowance achieved the same result as New Start Allowance but in a different way; that while he was not working he was still entitled to Social Security payments; If there was any requirement for further action to ensure his continuing payments, following his phone call in May, the onus was on Centrelink to make sure these requirements were met.
(f)In respect of the letter sent by Centrelink on 25 May 2002, Mr Panagakis said he never received this letter.
(g)In respect of Mr Panagakis’s letter to Centrelink dated 15 November 2002, advising Centrelink that he had commenced work on 1 November 2002 and would therefore like his Youth Allowance cancelled, Mr Panagakis said that this was in response to the letter he received from Centrelink dated 6 November 2002, which informed him that a recent data match between Centrelink and the Wynn-Hoelscher Academy had shown that he had stopped full-time study from 23 April 2002 and requesting him to confirm his student status.
14.The Tribunal notes the following excepts from the SSAT’s decision.
“8. Mr Panagakis said the College advised him to contact Centrelink. He waited for a refund from the College before ringing Centrelink and this took somewhere between two and four weeks. He therefore rang the Biggera Waters office somewhere between mid-May and the end of May 2002. Mr Panagakis said he could not recall the number he rang. He spoke to the Centrelink officer for between five and ten minutes and the officer asked for his name and reference number. The officer knew from whatever records he or she was looking at what he was studying and earning.
9. Mr Panagakis said the officer indicated that Centrelink would phone him or ‘send something in the mail’. When this did not occur he did not think anything of it. He thought he was entitled to continuing payments because he was unemployed. Mr Panagakis said he had never been on youth allowance before. He had at an earlier time been in receipt of newstart allowance and thought youth allowance was also paid for being unemployed.
…
11. Mr Panagakis said that when he obtained work he contacted Centrelink to advise he no longer needed youth allowance. He said Centrelink already knew he was no longer studying, which indicated that he advised Centrelink at an earlier time about this.”
15. Mr Panagakis was not able to amplify or further clarify what was recorded by the SSAT. Furthermore, the Tribunal notes that the data matching referred to above, appears to explain how Centrelink became aware that Mr Panagakis’ student status may have changed.
16. The Tribunal is mindful that it was Mrs Panagakis’s evidence that she was present when her son called Centrelink in May 2002 to inform them that he had ceased full-time study.
17. In respect of financial circumstances, the Applicant said that he was currently “doing all right”, being in what he saw as secure employment in an industry with which he was familiar. He said he was paying off computers, had phone bills to pay, managed a credit card and when he needed to, could borrow the family car. He said he had no health problems.
Respondent’s Submissions
18. It was the Respondent’s submission that the Applicant clearly ceased to qualify for Youth Allowance when he ceased full-time study on 23 April 2002 and that continuing payments beyond that date were benefits which the Applicant was not entitled to receive and therefore a debt arose pursuant to section 1223(1) of the Act.
19. Ms Dwyer contended that in accordance with section 28A and 29 of the Interpretation Act the letter sent on 25 May 2002 was served on Mr Panagakis by posting it to his last address and the Applicant’s obligations were clearly set out on the back of this letter. In any event, Mr Panagakis (as a result of having previously received NSA) was aware of his obligation to notify Centrelink of changed circumstances.
20. In respect of the Applicant’s claim to have called Centrelink in May to advise them that he had ceased study it was submitted that on the Applicant’s own evidence the number he claimed to have called was very likely a call centre number (and not a customer service centre number) and that the records of interaction between Centrelink and the Applicant did not show any contact as claimed by the Applicant. It was the Respondent’s contention that the Applicant did not make the phone call in May, as he claimed.
21. Insofar as the Applicant’s contention that he expected to receive Youth Allowance while unemployed, it was submitted that the Applicant had been in receipt of Newstart Allowance previously, knew of the need to enter into an activity agreement, to regularly hand in forms and look for work (establishing contact with employers). The Respondent also questioned the Applicant’s credit in making a misleading statement about his accommodation circumstances on his claim for Youth Allowance.
22. As such, it was submitted that the debt owed to the Commonwealth by the Applicant was not caused solely by administrative error nor had the payments been received in good faith, and therefore the debt could not be waived pursuant to section 1237A of the Act.
23. In respect of special circumstances, it was the Respondent’s submission that there were no circumstances in this matter which were within the meaning of special circumstances and that section 1237AAD had no application. In this regard the Respondent also referred to the provisions of the SSA Act for cases where a claim was not necessary (section 12) and where there could be a deemed claim (section 15). It was submitted that the Applicant’s circumstances in this matter did not come within these provisions and furthermore a notional entitlement to another benefit such as Newstart Allowance cannot be set off against the Applicant’s debt of Youth Allowance. Ms Dwyer referred the Tribunal to Re Moon and Secretary, Department of Family and Community Services [2003] AATA 676 in its consideration of whether the notional payment could be used as an offset against the Applicant’s debt of Youth Allowance.
24. The Respondent therefore submitted that the decision under review should be affirmed.
Consideration
25. After consideration of all of the material before it and the submissions of both parties the Tribunal is satisfied that the Applicant received Youth Allowance in the sum of $5,357.69 during the period 23 April 2002 to 15 November 2002 which he was not qualified to receive and the Tribunal finds that this amount is a debt due to the Commonwealth by the Applicant, pursuant to section to 1223(1) of the Act.
26. The first question before the Tribunal is whether there is a proportion of this debt that is attributable solely to an administrative error made by the Commonwealth.
27. Central to answering this question is whether the Tribunal is satisfied that the Applicant did or did not receive Centrelink’s letter of 25 May 2002 advising him that his claim for Youth Allowance had been accepted, what the amounts of payment were to be and that the Applicant was to let Centrelink know within fourteen days if he ceased study or ceased being a full-time student.
28. Pursuant to section 23(12) of the Act, Centrelink’s letter of 25 May 2002 is a notice of a decision under the Act and as such, under section 237(1) of the Act and section 28A and 29 of the Interpretation Act, on the evidence before it, the Tribunal is satisfied that this notice of the decision in respect of the Applicant’s Youth Allowance was, for the purposes of social security law, given to the Applicant. The Tribunal in being so satisfied, is mindful of the Applicant’s contention he did not receive the letter even though he received other correspondence from Centrelink addressed to the same postal address as that on the letter in question. The Tribunal is also mindful that the Applicant’s postal address has been the same for many years and during the relevant period not subject to change and that his mother usually collects the Post Office box mail.
29. Even if the Tribunal were to accept the Applicant’s evidence that he did not receive the letter of 25 May 2002, and the Tribunal makes no finding on this, clearly within the law he has been given, by Centrelink, a notice of grant of Youth Allowance which contains advice about the obligations that he had in respect of notifying changes. Furthermore the Tribunal is satisfied that the Applicant should have been aware of such obligations as a result of previously having been on Newstart Allowance.
30. This then raises the question as to whether Mr Panagakis did phone Centrelink in May to advise them that he had ceased full-time study.
31. The Tribunal is mindful that the Applicant, on his own evidence (and that of his mother), claims to have called a Centrelink call centre in May 2002 and that there is no record of such a call, even though in one account given by the Applicant, the person to whom he was speaking had called up file information specific to him. When questioned at the Tribunal hearing about the circumstances surrounding this call the Applicant’s answers were less than forthright, as were his answers to questions as to why he claimed to be living with and paying rent to friends when he submitted his claim for Youth Allowance. Also, the Applicant made no attempt to follow up what he sees as Centrelink’s failure to send him further information as they had advised they would do.
32. After careful consideration of all of the material before it and the submissions of both parties, the Tribunal finds that Mr Panagakis did not advise Centrelink of his ceasing full-time study at the Wynn-Hoelscher Academy until 15 November 2002 when he advised Centrelink he had commenced work on the 1 November 2002.
33. The Tribunal is satisfied that the Applicant must bear the blame for Centrelink’s paying him Youth Allowance which he was not qualified to receive and therefore the Tribunal finds that there is no proportion of the debt he faces which is solely attributable to an administrative error made by the Commonwealth. That being so, section 1237(A) of the Act is not applicable and it is not necessary to consider whether Mr Panagakis received the overpayment in good faith.
34. With respect to special circumstances, the Tribunal notes that although special circumstances are not defined in the Act, the approach to be taken in interpretation and application of the discretionary provisions of the Act have been dealt with by the Tribunal and the Federal Court in numerous cases. In Re Beadle and Director-General of Social Security (1984) 6 ALD 1 it was said:
“An expression such as ‘special circumstances’ is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.”
35. This decision was generally affirmed on appeal by the Full Court of the Federal Court of Australia in Beadle v Director-General of Social Security (1985) 7 ALD 670, where it was said:
“the phrase ‘special circumstances’, although lacking precision, is sufficiently understood in our view not to require judicial gloss.”
36. Furthermore, the Tribunal is mindful that all of the circumstances in a particular case must be considered and the Tribunal should adopt a flexible response to such circumstances bearing in mind the need to consider community interest in the recover of public monies.
37. In this respect the Honourable Justice French in Secretary, Department of Social Security v Hales (1998) 153 ALR 259 said:
“The evident purpose of section 1237AAD is to enable a flexible response to the wide range of situations which could give rise to hardship or unfairness in the event of a rigid application of a requirement for recovery of debt. It is inappropriate to constrain that flexibility by imposing a narrow or artificial constraint upon the words. It may be that there will be few cases in which the Secretary will be satisfied that there are special circumstances in the absence of financial hardship. It may be that there are few cases in which having found special circumstances to exist, the Secretary would exercise the discretion to waive in the absence of financial hardship. But to anticipate the limits of the categories of possible cases by imposing on the language of the Section a fetter upon its application which is not mandated by its words is to erode its useful purpose.”
38. Furthermore, to waive the debt under this provision, it must be more appropriate to waive rather than write off the debt. In these circumstances, the Applicant has the capacity to repay the debt. In Re Secretary, Department of Social Security and McAvoy (AAT 11263, 26 September 1996) the Tribunal referred to the need to balance the competing interests in the burden of repayment for the individual over a period of time against the community interest in recovery of public moneys. Further, in Hales (supra), the Federal Court said:
“From time to time in the administration of social security benefits, overpayments occur. Sometimes these are the result of innocent non-compliance with the requirements of law which can be affected by the stress associated with the circumstances that led to the receipt of benefits in the first place. The taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to receive will be recovered, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the persons concerned.”
39. The Tribunal is also mindful that Her Honour Justice Keifel in Groth v Secretary, Department of Social Security (1995) 40 ALD 541 stated, in respect of special circumstances, that it would require something to distinguish an Applicant’s case from others, to take it out of the usual or ordinary case.
40. In considering special circumstances, the Tribunal finds there are no financial, health or employment circumstances which are special within the meaning of that term as set out above. There is one other significant circumstance which must be considered. Mr Panagakis asserts that during the overpayment period of Youth Allowance, he was unemployed and entitled to receive Newstart Allowance. He contends he should not be denied payment of this allowance, and, in effect, his notional entitlement to Newstart Allowance should be used to offset his debt of Youth Allowance.
41.In Moon (supra), the Tribunal said:
“The Tribunal rejects the submission by Ms Karapanagiotidis that a notional entitlement to another benefit can be set-off against the debt of youth allowance. Section 15 of the Administration Act does not support such an approach, as the section requires that the claim for youth allowance be an incorrect claim: (s15(1)(b) of the Administration Act). In view of the Tribunal’s finding above that the Applicant was qualified for youth allowance at the time of his claim, the claim for youth allowance cannot be an incorrect claim as required under s15 of the Administration Act: Secretary Department of Family and Community Services and Valori (2002) 35 AAR 66. In regard to the provision in s12(3) of the Administration Act dealing with transfer between payments, the section requires that the person be qualified for another payment. The Tribunal is not satisfied that the Applicant qualified for either newstart allowance or special benefit at any time in the period from 1999 to 2001. The Tribunal accepts the submission of Mr Huttner that newstart allowance has a number of requirements for eligibility, which cannot be satisfied retrospectively.”
42. The case of Moon is on point with Mr Panagakis’ case and the Tribunal adopts the approach taken in Moon. Furthermore, in respect of section 12(1) of the SSA Act the Tribunal notes that Mr Panagakis may have been qualified for Newstart Allowance during the debt period. However, to “become qualified” he would need to not only lodge a claim but also need to comply with all of the other requirements for Newstart Allowance, as outlined above. The Tribunal is satisfied that the Applicant’s claim for Youth Allowance was not an incorrect claim; that he did not become qualified to receive NSA during the relevant period; and that any notional entitlement to NSA cannot be set off against his debt of Youth Allowance.
43. There remains then to consider whether Mr Panagakis’s possible entitlement to Newstart Allowance during the debt period and any unfairness arising from him being denied a payment which he believed he was entitled to receive is a “special circumstance” for the purpose of section 1237AAD of the Act. After consideration of all of the relevant material the Tribunal is satisfied that the circumstances of the Applicant’s notional entitlement to Newstart Allowance during the debt period does not warrant the exercise of the special circumstances discretion.
44. The Tribunal is satisfied that there are no special circumstances in this matter and that the debt cannot be waived under the provisions of section 1237AAD. Therefore, the decision under review is affirmed.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed: Nicca Grant
Associate
Date/s of Hearing 23 February 2004
Date of Decision 9 March 2004The Applicant was assisted by his mother, Mrs Panagakis
Solicitor for the Respondent Ms J Dwyer, Departmental Advocate
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