Pieri; Secretary, Department of Education, Science and Training and

[2007] AATA 1533

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1533

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S 200600409

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF EDUCATION, SCIENCE AND TRAINING

Applicant

And VASILIOS PIERI

Respondent

DECISION

Tribunal Mr J G Short (Member)

Date11 July 2007

PlaceAdelaide

Decision

The Tribunal:

(a)  affirms the decision to raise an overpayment of Youth Allowance in the sum of $3,679.08; and

(b)  sets aside the decision to waive recovery of all of this sum and substitutes a new decision that recovery of $1,500.00 be waived and that the remaining sum ($2,179.08) be recovered.

..............................................

J G SHORT

(Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Youth Allowance – whether undertaking full-time study during a study period – meaning of study period – failure to notify changed circumstances – decision affirmed in relation to overpayment and set aside in relation to waiver

Social Security Act 1991 ss 1223(1), 1237AAD

Re Secretary, Department of Family and Community Services and Ung [2003] AATA 748
Secretary, Department of Employment, Education, Training and Youth Affairs v Gray [1999] FCA 1150
Re Secretary, Department of Family and Community Services and Matheson [2003] AATA 542

REASONS FOR DECISION

11 July 2007   Mr J G Short (Member)

1.      The Secretary for the Department of Education, Science and Training has appealed decisions of the Social Security Appeals Tribunal (the SSAT) made on 27 November 2006 affirming a debt reflecting payments of Youth Allowance made during the period 28 February 2005 until 17 June 2005 in the sum of $3,679.08 and setting aside the decision to recover this last-mentioned sum, substituting a decision that recovery of all of the debt be waived.

issues

2.      The issues for determination are:

(a) whether Mr Pieri has a debt payable to the Commonwealth in the sum of $3,679.08, and;

(b) if yes, whether recovery of all or part of the debt should be waived or written off.

mr pieri’s evidence

3.      Mr Pieri adopted as accurate a summary of evidence provided to the SSAT and recorded in paragraph 10 of its reasons for decision dated 27 November 2006 (T2/4-5).  This summary reads as follows:

“…

·Mr Pieri started the four-year physiotherapy course in 2000 and finished in semester 1 of 2006.  He took the year 2001 off from study.

·In September 2004 he was ill with a throat infection and was unable to complete the second work placement for the subject ‘rehabilitation’.

·Mr Pieri talked with a course counsellor at University of SA about how this would impact on completing the course.  On compassionate grounds he sought status for the portion of the subject he had completed in 2004 and requested that he finish the placement in 2005 but not have to pay HECS for the same subject in 2005.

·The University said this was not the normal practice but arranged for him to sign some paperwork for withdrawal from the subject in 2004 so that he did not have an academic blemish and also to waive HECS for 2005.

·Mr Pieri was always under the assumption that he had withdrawn and had to do the 9-unit subject ‘rehabilitation’ again in 2005.

·He said he was given status, not credit, for the portion of the subject he had completed in 2004 and only had to do one week of pre-clinical study and then a 4-week placement in 2005, which included projects, clinical tests and seminars.  Outside of the 5 weeks he still revised work from 2004 so that he was up to speed with clinical patterns.

·In Semester 1, 2005, Mr Pieri enrolled on-line at campus central for the two subjects: rehabilitation (9 units) and physiotherapy research project (4.5 units).  He could not do additional subjects, as he had not completed the required rehabilitation prerequisite subject.  His study load was 13.5 units (75% of course load).

·Mr Pieri then went onto the computer clinical placement program (SONIA) to arrange the 2005 work placement but it would not allow him to register.

·He was advised by the University that the special arrangements made for him meant that he would have to un-enrol from ‘rehabilitation’ so as not to upset the university computer systems.  He was told he did not need to do anything else.

·He did not think this was a problem as in his eyes he was enrolled as a full-time student for Semester 1, 2005.  At no time did he think he needed to tell Centrelink about the course load.

·Mr Pieri does not agree with the way the University recorded his subjects on the academic transcripts.  He should have been recorded as passing rehabilitation in Semester 1, 2005 not in Semester 2 of 2004 because he did not complete the subject until 2005.  Rehabilitation should have been recorded as a withdrawal in 2004.

·He disputed the way the authorised review officer calculated the sufficiency of his semester 1, 2005 load on the basis of him doing 4.5 units, that is, ‘half’ of the rehabilitation subject.  He said it should have been recorded as the full 9 units.

·If Mr Pieri had known in 2005 that the study load would be deemed insufficient by Centrelink, he would have qualified for newstart allowance as a jobseeker because he was looking for work during the period.  He said newstart allowance was a greater amount than youth allowance.  Mr Pieri found work from 24 May 2005 after the placement finished.

·Mr Pieri completed the physiotherapy course at the end of Semester 1, 2006.  It took him 6 months longer than expected due to the illness in 2004 messing up his subjects.

·Mr Pieri commenced working at Resthaven as a physiotherapist in a permanent position from 28 August 2006 earning around $45,000.  He has been repaying the debt at $100 per fortnight.”

4.      Mr Pieri explained that in semester 2 of 2004 he had undertaken the subject Rehabilitation (course code REHB 3011) worth 9 units together with Acute Care (course code REHB 3007) also worth 9 units.  Mr Pieri explained that the course Rehabilitation was in two parts.  It involved practical placements dealing with adults for four weeks and then with children for four weeks.  He said that associated with each placement was an assignment, a case presentation and a clinical exam.  In the case of rehabilitation of adults, there was also a case study and in relation to children, a test. 

5.      Mr Pieri said that he had completed the adult placement (covering a period of four weeks) in semester 2 of 2004 and had also completed two weeks of his four week children’s placement, when he became ill with a throat infection.  He said that his children’s placement had been in a clinical setting and consequently he could not place the children at risk by continuing with that part of the course.  Mr Pieri discussed the situation with the acting course co-ordinator, Dr Susan Hillier.  Mr Pieri said that Dr Hillier had advised him that he should withdraw from Rehabilitation in 2004 and that he could then do that course in the first semester of 2005, obtaining a credit for one half of the course, that is the portion dealing with adults.  He said that Dr Hillier provided him with a form relating to withdrawal from a course without failure and another form relating to waiver of HECS fees for 2005.  He said that he completed those forms with the assistance of his general practitioner and then returned the forms to Dr Hillier.  At that juncture it was his understanding that he would not be enrolled in Rehabilitation in 2004 but would be enrolled in that subject, a 9 point subject, in 2005 and that, with the addition of the subject Physiotherapy Research Project U (course code REHB 4014) worth 4.5 units, he would be enrolled in 13.5 units of study during the first semester of 2005 and consequently meet the requirement for consideration as a full-time student.

6.      Mr Pieri said however that in early 2005, when he attempted to enrol in Rehabilitation for the first semester of 2005 and to obtain his work placement (the second or children’s part of his Rehabilitation project), the University software system did not allow him to obtain his placement.  He spoke to the then course co-ordinator, Ms Elizabeth Pridham, who told him that his placement for the second part of his rehabilitation program had already been arranged with the Women’s and Children’s Hospital and that this was why he could not complete the placement online.  He said that Ms Pridham also advised him to withdraw his 2005 enrolment as “everything had already been set up” for him.  Mr Pieri said that he finished the conversation with Ms Pridham with the understanding that he was a full-time student in the first semester of 2005.  He told the Tribunal that he was unsure and a little puzzled as to why he was required to withdraw his enrolment for 2005 in Rehabilitation, but considered that it was simply part of the arrangement he had made with the University.

7.      Mr Pieri said that he understood that he had a requirement to complete 13.5 units in semester 1 of 2005.  He explained that before undertaking the children’s project he had quite a bit of revision work to do.  He said he was aware that he had been granted status for 50 percent of the Rehabilitation course and consequently was not physically performing 100 percent of the requirements of the Rehabilitation course during the first semester of 2005.

8.      Mr Pieri said that if he had known that the University had not recorded his enrolment in Rehabilitation in 2005, then he would have re-arranged his course of study so that he could have undertaken at least 75 percent of the required full-time course load or alternatively, sought full-time employment.

9.      Mr Pieri said that in his mind he was registered as a full-time student in semester 1 of 2005 and consequently should have qualified for Youth Allowance on that basis.  Mr Pieri said that he could afford to repay the debt as he was now working.  However, it was submitted on his behalf that it would be unfair to require him to repay the debt as he completed his course in a reasonable time and simply went along with the arrangement agreed between himself and the University in relation to completing the subject Rehabilitation which had been interrupted due to illness.

ms elizabeth pridham’s evidence

10.     Ms Pridham is the course co-ordinator for Physiotherapy.  She described Mr Pieri’s academic record of the subject Rehabilitation as one which had been initially recorded as “incomplete” in 2004, but then, when completed in 2005, altered to read “completed” in 2004.  She said that this type of arrangement may occur two or three times out of every ninety students.  She described Physiotherapy as a semester-based course and Rehabilitation as a semester subject.  She confirmed that Rehabilitation was generally a prerequisite subject before continuing with other semester based subjects, save for two subjects which could be completed without this prerequisite.

does mr pieri have a debt to centrelink of $3,679.08?

11.     Ms Riley, on behalf of Mr Pieri, argued that the Tribunal should view Mr Pieri as having been a full-time student in the first semester of 2005.  She said that it was not in dispute that Mr Pieri was enrolled in a course of education at an educational institution and that the course met the Secretary’s requirements.  The issue between the parties was whether Mr Pieri was undertaking three quarters of the normal full-time study load in the course during the debt period.  Ms Riley suggested that the Tribunal should accept “study period” as meaning the academic year 2005 and that if this were accepted, then Mr Pieri’s total unit value for that year, as recorded in the academic transcript, would be 22.5 units and if one half of the 9 units ascribed to Rehabilitation were considered to have been performed or undertaken in 2005, then this would bring the total for that year to 27 units and satisfy the requirement of three quarters of the full-time workload.  I was referred to Tribunal and judicial authority, some of which I found irrelevant.  Deputy President Forgie in Re Secretary, Department of Family and Community Services and Ung [2003] AATA 748 reviewed the authorities and relevant legislation. She purported to follow the Federal Court in Secretary, Department of Employment, Education, Training and Youth Affairs v Gray [1999] FCA 1150 when she said:

“In Gray, Hill J was concerned with whether Mr Gray was a full-time student within the meaning of the provisions of the Austudy Regulations made under the Student and Youth Assistance Act 1973 (‘the SYA Act’) but his approach is relevant in this case.  It was to dissect the requirements of the Austudy Regulations and then apply the facts to those requirements.  This is the approach that I intend to apply in this case.”

Deputy President Forgie also said in Re Secretary, Department of Family and Community Services and Matheson [2003] AATA 542 at paragraph 30:

“30.  In summary, it seems to me that no assistance is to be gained from either the Study Progress Guide-lines or the Explanatory Memoranda.  What is the study period for which a person is enrolled remains a question of fact to be decided in each case.  …”

I share Deputy President Forgie’s view that a study period is to be determined by the facts in each case.

12.     Ms Riley submitted that generally the Youth Allowance legislation was beneficial legislation and aimed at keeping people learning.  She said that it should consequently be a given flexible interpretation.  The University Program Information 2006 internet page dealing with Physiotherapy (Exhibit R2) lists semester subjects under different years.  In years three and four, subjects can be studied in either semesters 1 or 2.  Ms Riley also referred to the official academic record in which one of the headings under which results are recorded is “years”.  Ms Riley suggested that this implies that the study period should be considered to be an academic year.  She also referred to “common parlance” in referring to students as first year students or second year students, etc. 

13.     I have considered all of the submissions made by Ms Riley on Mr Pieri’s behalf.  The academic record indicates that Mr Pieri was not enrolled in Rehabilitation in 2005.  The transcript refers to him as enrolled in that subject in 2004.  Although Mr Pieri clearly completed one half of that subject in 2005 the official academic transcript does not suggest that the “period of study” ought to be considered to be any period other than a semester.

14. Ms Pridham provided evidence that the University considers Physiotherapy to be a course of study or program undertaken by semester and that the subject Rehabilitation is considered a subject studied by semester. I also note in passing that Mr Pieri expressed the view that he understood that he needed to undertake 75 percent of a full semester’s workload (13.5 units), in the first semester of 2005. There is also the fact that Mr Pieri was not in fact undertaking the entire Rehabilitation subject in the first semester of 2005. He had been provided with credit for one half of that subject. In the light of the evidence I find that the “period of study” in this case is a semester and that during the first semester of 2005 Mr Pieri could not be considered a full-time student, that is, a student undertaking 75 percent of the normal workload during that period of study. It follows that Mr Pieri was not qualified to receive Youth Allowance on the basis of his study during the first semester of 2005 and consequently s 1223(1) of the Social Security Act 1991 (the Act) operates to create a debt in the sum paid to a recipient of a benefit or allowance beyond their entitlement during a particular period.  In this case I find that  Mr Pieri was overpaid and has a debt in the sum of $3,679.08.  This decision is consistent with the decision of the SSAT.

should recovery of all or part of the debt be waived or written-off?

15. An alternative submission made by Ms Riley was that the Tribunal should favourably exercise the discretion prescribed in s 1237AAD of the Act. This section reads as follows:

“1237AAD  Waiver in special circumstances

The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

(a)the debt did not result wholly or partly from the debtor or another person knowingly:

(i)        making a false statement or a false representation; or

(ii)failing or omitting to comply with a provision of this Act 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.

Note 1:  Section 1236 allows the Secretary to write off a debt on behalf of the Commonwealth.

Note 2:  This section has effect subject to section 1237AAE in relation to an assurance of support debt.”

16.     If the Tribunal is able to find that the debt did not result partly from Mr Pieri or another person knowingly making a false statement or representation or failing or omitting to comply with a provision of the Act, then the Tribunal may, in appropriate circumstances, make a decision to waive all or part of the debt.  In this case the Tribunal accepts that neither Mr Pieri nor any other person knowingly made a false representation or failed to comply with a provision of the Act.  While Mr Pieri did not advise the Department of a change in his course of study, I find that Mr Pieri did not act knowingly in failing to provide this advice. 

17.     The Tribunal has considered all of the circumstances of this case.  The Tribunal noted that when Mr Pieri became ill in 2004, the course co-ordinator for physiotherapy at that time was Dr Hillier.  It was Dr Hillier who made the initial arrangements with Mr Pieri.  When those arrangements were next discussed (after Mr Pieri attempted to arrange the children’s project in 2005), Ms Pridham had resumed her role as course co-ordinator.  The Tribunal considers that this change in personnel contributed to Mr Pieri’s understanding of the University’s record of his study in the first semester of 2005.  The Tribunal has also noted that the need to revisit or alter Mr Pieri’s program of study arose out of an unexpected event, namely illness.  Both the University and Mr Pieri attempted to adapt his course of study so as to achieve a practical outcome, which included avoiding the need for Mr Pieri to incur more than one HECS debt for the one subject.  Special arrangements were made and Mr Pieri simply followed his understanding of those arrangements.  The Tribunal does not blind itself to the fact that Mr Pieri was aware of the requirement to undertake the deemed full-time study load during the first semester of 2005 and that he was not undertaking all of the 9 point subject Rehabilitation, during that semester, having completed one half of that subject in 2004.  The Tribunal generally considered the particular combination of circumstances surrounding Mr Pieri’s study in 2004 and 2005 to be special.  Although Mr Pieri conceded that he could afford to repay the outstanding debt, the Tribunal considered it desirable to waive recovery of a portion of the debt, that is an amount of $1,500.00.  The Tribunal decided that it was appropriate to require recovery of the remaining portion of the debt.  In reaching its decision, the Tribunal considered that it is more appropriate to waive recovery of a portion of the debt than to write-off (delay) recovery of any portion of that debt.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)

Signed:         ............J Coulthard.........................................
  Associate

Date of Hearing  6 June 2007
Date of Decision  11 July 2007

Advocate for the Applicant       Mr P Edwards

Centrelink Legal Services Branch

Advocate for the Respondent   Ms M Riley

Welfare Rights