Priestly and Secretary, Department of Employment and Workplace Relations
[2006] AATA 719
•21 August 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 719
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/236
GENERAL ADMINISTRATIVE DIVISION ) Re MARA PRIESTLY Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Mr I Way, Member Date21 August 2006
PlaceSydney
Decision The decision under review is affirmed. ..............................................
Mr I Way Member
CATCHWORDS
SOCIAL SECURITY – Youth Allowance – Whether applicant not qualified for Youth Allowance – Whether debt arose – If debt did arise, should it be waived – Whether solely an administrative error – Whether special circumstances exist – decision affirmed
Social Security Act 1991 – sections 540, 541, 541B, 543B, 1223, 1237, 1237A, 1237AAC 1237AAD
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Groth v Secretary, Department of Social Security (1995) 40 ALD 54
Riddell v Secretary, Department of Social Security (1993) 30 ALD 31
Schulze and Secretary, Department of Family and Community Services [2004] AATA 705
Varhegyi, Secretary, Department of family and Community Services [2005] AATA 635
REASONS FOR DECISION
21 August 2006 Mr I Way, Member 1. This is an application by Mara Priestly (“the Applicant”) for review of a decision of the Social Security Appeals Tribunal (“SSAT”) made on 31 January 2006. The SSAT’s decision affirmed a decision made by a Centrelink Authorised Review Officer on 6 June 2005 to affirm an original Centrelink decision of 28 September 2004 to raise and recover a Youth Allowance (“YA”) debt of $5,795.42 from the Applicant for the period 9 February 2004 to 14 September 2004.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T42) and other documentary evidence marked as Exhibits A1 for the Applicant and R1 and R2 for the Respondent.
3. At the hearing Ms Priestly was assisted by her mother, Mrs Nina Priestly, and both Mrs Priestly and Ms Priestly gave oral evidence. Mr J Kenny represented the Respondent.
issues and legislative framework
4. The issues in this matter are whether the Applicant was qualified for YA during the period 9 February 2004 to 14 September 2004; and if not whether she has a debt to the Commonwealth; and if so, what is the amount of that debt and whether all or part of this amount may be waived.
5. This matter is to be determined within the provisions of the Social Security Act 1991 (“the Act”).
6.The Act relevantly provides:
“540 Qualification for youth allowance – general rule
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 subsection7(7).
…
541 Activity test
General
(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
(b) the person satisfies the Secretary that, throughout the period, the person is actively seeking, and willing to undertake, paid work in Australia (other than paid work that is unsuitable for the person); or
(c) throughout the period, the person complies with the terms of a Youth Allowance Activity Agreement applying to the person.
…
541B Undertaking full-time study
General
(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
(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 person:
(i) is undertaking in the particular study period (such as, for example, a semester) for which he or she is enrolled for the course; or
(ii) intends to undertake in the next study period for which he or she intends to enrol for the course;
Either:
(iii) in a case to which subsection (1A) does not apply – at least three-quarters of the normal amount of full-time study in respect of the course for that period (see subsections (2) to (4)); or
(iv) in a case to which subsection (1A) applies—at least two‑thirds of the normal amount of full‑time study in respect of the course for that period (see subsections (2) to (4)); and
(c) the course in question is an approved course of education or study (see subsection (5)); and
(d) in the Secretary’s opinion, the person is making satisfactory progress towards completing the course.
When two-thirds study load applies
(1A) This subsection applies for the purposes of subparagraph (1)(b)(iv) if the person cannot undertake the normal amount of full-time study in respect of the course for that period:
(a) because of the usual requirements of the institution in question in respect of the course; or
(b)because of a specific direction in writing to the student from the academic registrar, or an equivalent officer, of the institution in question; or
(c) because the academic registrar, or an equivalent officer, of the institution in question recommends in writing that the person undertake the amount of study mentioned in subparagraph (1)(b)(iv) in respect of the course for specified academic or vocational reasons.
Paragraph (c) applies for no longer than half of the academic year.
Meaning of normal amount of full-time study
(2) For the purposes of paragraph (1)(b), the normal amount of full-time study in respect of a course is:
(a) if:
(i) the course is a course of study within the meaning of the Higher Education Support Act 2003; and
(ii) there are Commonwealth supported students (within the meaning of that Act) enrolled in the course;
the full‑time student load for the course; or
(b) if the course is not such a course and the institution defines an amount of full-time study that a full-time student should typically undertake in respect of the course – the amount so defined; or
(c) otherwise – an amount of full-time study equivalent to the average amount of full-time study that a person would have to undertake for the duration of the course in order to complete the course in the minimum amount of time needed to complete it.
Alternative meaning of normal amount of full-time study
(3) For the purposes of paragraph (1)(b), and without limiting subsection (2), the normal amount of full-time study in respect of a course is an average, taken over the duration of the period for which the person in question is enrolled in the course, of 20 contact hours per week.
…
543B Maximum age for youth allowance
General
(1) Subject to subsection(2), the person has attained the maximum age for youth allowance if:
(a) the person is not undertaking full-time study and is at least 21 years old; or
(b) the person:
(i) is undertaking full-time study in respect of a course of education that is to last for less than 12 months; and
(ii) was, immediately before starting the course of education, receiving newstart allowance; and
(iii) is at least 21 years old; or
(c) the person is undertaking full-time study and is at least 25 years old; or
(d) the person is not a new apprentice and is at lest 21 years old; or
(e) the person is a new apprentice and is at least 25 years old.
…
1223 Debts arising from lack of qualification, overpayment etc
(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.
(1AA) If a social security payment is made to, or as directed or authorised by, the person who is entitled to obtain the benefit of the payment, subsection (1) does not apply to any other person who afterwards obtains the benefit of the payment unless the other person obtained the benefit because of a mistake made by the first person in connection with the giving of the direction or authorisation.
(1AB) Without limiting by implication the circumstances to which paragraph (1)(b) applies apart from this subsection, a person who obtained the benefit of a social security payment is taken not to have been entitled to obtain the benefit if the payment should not have been made for any one or more of the following reasons:
(a) the payment was made to the person by mistake as a result of a computer error or an administrative error;
(b) the person for whose benefit the payment was intended to be made was not qualified to receive the payment;
(c) the payment was not payable;
(d) the payment was made as a result of a contravention of the social security law, a false statement or a misrepresentation;
(e) the payment was made in purported compliance with a direction or authority given by the person who was entitled to obtain the benefit of the payment but the direction or authority had been revoked or withdrawn before the payment was made;
(f) the payment was intended to be made for the benefit of someone else who died before the payment was made.
…
1237 Power to waive Commonwealth’s right to recover debt
Secretary’s limited power to waive
(1) On behalf of the commonwealth, the Secretary may waive the Commonwealth’s right to recover the whole or a part of a debt from a debtor only in the circumstances described in section 1237A, 1237AA, 1237AAA, 1237AAB, 1237AAC or 1237AAD and, if the debt is an assurance of support debt, subject to section 1237AAE.
When waiver takes effect
(2) A waiver takes effect:
(a) on the day specified in the waiver (whether that day is before, after or on the day on which the decision to waive is made); or
(b) if the waiver does not specify when it takes effect – on the day on which the decision to waive is made.
…
1237A Waiver of debt arising from error
Administrative error
(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.
...
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 1947Act; 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.
…”
the evidence and submissions of ms priestley and mrs priestly
7. Mrs Priestly states that she was acting on behalf of her daughter due to her daughter being completely overwhelmed by her current situation. Mrs Priestly was also concerned about various health issues her daughter was facing, due also from the stress and anxiety of her current circumstances.
8. Ms Priestly told the Tribunal she has born on 15 July 1982, attended Secondary school in Armidale and obtained special entry in 2001 to Charles Sturt University, Bathurst, studying Arts - Human Movement on a full-time basis. She said that after two years she realised the course was not what she wanted and that she enrolled at the University of New England, Armidale in 2003 as a full-time student studying primary school teaching (Bachelor of Education). She said that after one year of this course she discontinued without sitting the exams at the end of semester two, and in 2004 enrolled at TAFE Armidale in a Flexi Link course which would qualify her for Certificate level III in Travel Retail Sales. She said she did not know if the course was classified as full-time or part-time and that she did not fully complete the course. The Tribunal notes the SSAT, in its reasons for decision, records Ms Priestly telling the tribunal that she had mentioned to the receptionist at Centrelink that the course was a part-time course and that in addition to her coursework she would be looking for some part-time work (T2/7). The Tribunal further notes that a Centrelink record (T33/67) states “customer stated that she provided poe [proof of enrolment] at Armidale CSC at the beginning of 2004, which showed she was a part-time student”. Mr Priestly told the Tribunal that the course normally took one year but she undertook some coursework in 2005. She said she had not completed the course because she gained employment in the travel industry as a travel reservations agent with P&O (South Pacific Cruises). She had looked for work in Armidale for four months in the first part of 2004 and then decided to move to Sydney for greater job opportunities, particularly in tourism.
9. The Tribunal notes that the TAFE New England Institute Handbook defines Flexi Link and that this definition is directed towards describing flexible methods used in the delivery of learning materials and in assessment tasks, but does not indicate whether a course is full-time or part-time. The Tribunal also notes advice from TAFE Armidale (T26/49) that Mara Priestly was enrolled in the Tourism – Retail Travel Sales Certificate Level III (course number 7017) at Armidale Campus and that the Applicant was studying the course part-time over one year by mixed mode delivery.
10. In respect of work, Ms Priestly said she did not undertake any work while studying at Charles Sturt University or during her course at UNE. She said she first worked part-time for David Jones in Sydney in July 2004, followed by work at Just Jeans in 2005 and then, after a period of stress leave, commenced at her current job with P&O in September 2005. She said she is enjoying her job with P&O and that her gross salary is $31,357 per annum. She said she also worked overtime occasionally when it was available, “once or twice in the last three months”.
11. It was Mrs Priestly’s evidence that her daughter had been receiving YA since 1998 when she turned 16. Mrs Priestly said that when her daughter was arranging to enroll at TAFE Armidale, she went with her daughter to Centrelink Armidale in February 2004, her daughter making this visit to discuss her proposed TAFE course and the continuation of her youth allowance while she was at TAFE. Ms Priestly said that she had difficulty remembering details of the visit or the exact date of the visit. She said she thought her interaction with the Centrelink officer took about five to ten minutes and that she wanted to know if her YA would be continued. She said she could not remember if she had to fill in any forms but she said she did show the Centrelink officer her Enrolment Form (T7). She said she could not remember whether there had been any discussion with the Centrelink officer about the need to actually be enrolled before any decision could be made in respect of paying her YA. She said she was aware of the need for Centrelink advice about her benefit status to get a TAFE fee exemption but repeated that this was not the reason for her visit to Centrelink; the purpose of the visit being to inquire about continuation of her YA while undertaking the Flexi Link course. Both Mrs Priestly and Ms Priestly stated that the money involved was of paramount importance and it was for this very reason, that Mrs Priestly was adamant that she could clearly recall the Centrelink officer telling her daughter that she would continue to receive her YA. Mrs Priestly said she did not take part in the conversation but did hear what was said. When it was put to Mrs Priestly that this evidence is contrary to what she told the SSAT, namely that she “did not pay attention to the conversation of what transpired at the counter”, she said that what is recorded by the SSAT is not true and that the SSAT has given the wrong interpretation to the discussion of this matter at the hearing. When it was further put to Mrs Priestly that she did not hear any part of the conversation between her daughter and the Centrelink Officer, she replied that she did hear very clearly that Mara was to receive YA on her Flexi Link TAFE course. The Tribunal notes that there is no record of Centrelink receiving a copy of the Applicant’s Enrolment Form (T7) and that this form was first provided to the SSAT by the Applicant.
12. Mr Kenny raised with both the Applicant and her mother the issuing of a Rates Notice to the Applicant on 16 February 2004. The Tribunal notes Centrelink’s record of this (T9/26). Mr Kenny explained that the Centrelink Officer involved, Debbie Howarth, is deceased and hence unable to assist the Tribunal. However he did note that her authorization code indicated that she was an officer who had been with Centrelink for a considerable period of time and likely to have been at that time, an experienced officer. Mr Kenny explained that a Rates Notice is issued on request to allow students to show proof of their receiving a benefit, such as YA, thereby making them eligible for course fee exemption. The Tribunal notes that the Enrolment Form (T7) shows an enrolling officer entry of “YA” in the non payment code box, dated 16 February 2004 and that enrolment was certified as completed on 19 February 2004, three days after the Rates Notice was issued.
13. Mr Kenny put to Mrs Priestly that the main concern she (and her daughter) had in going to Centrelink on 16 February 2004 was to obtain a Rates Notice so her daughter could receive a fee exemption. Mrs Priestly emphatically denied this and said that while the Rates Notice issue on 16 February 2004 would be helpful, they already had a rates notice and she stated “when the last payment of the Centrelink Students Financial Supplement Loan was made on 6 January 2004 and Mara returned to regular YA payment on 21 January 2004 a rates notice was issued so that Mara already had one”. The Tribunal notes that Mrs Priestly said she did not have this notice now and that she was referring to the standard Centrelink letter giving notification of payment of an allowance and that at that time, Ms Priestly was not enrolled at Charles Sturt University, contrary to what was shown in Centrelink records. Ms Priestly said she could not recall if she already had a Rates Notice at the time she visited Centrelink in February 2004 and that she really did not know what a Rates Notice was.
14. In respect of Centrelink letters sent to the Applicant informing her about her YA, the Tribunal notes that the letters contained instructions to recipients to tell Centrelink about events or changes of circumstances affecting payment of allowances including variations to enrollment, leaving a training course before it ends, ceasing being a full-time student or starting work. Ms Priestly said she could not remember receiving the letter sent to her, dated 26 November 2003 (T6/20). Mrs Priestly said she was aware of what Centrelink required in the way of notification of change of circumstances, referring to the back of many letters received from Centrelink. Ms Priestly accepted that she had not notified Centrelink of her change of enrollment from Charles Sturt University to UNE in 2003.
15. In respect to the Applicant‘s contact with Centrelink during the alleged debt period, it was the Applicant’s evidence that the next contact after 16 February 2004 was on 13 March 2004 to notify change of her address and then on 22 March 2004 regarding accommodation and rent. It was accepted by the Applicant that she contacted Centrelink on 14 April 2004 about obtaining a concession card when she was told she would need to apply for a concession card at TAFE. Mrs Priestly said that this confirmed that at least by this date Centrelink knew her daughter was a student at TAFE. Mrs Priestly told the Tribunal that she followed this up for her daughter and rang TAFE but they were on holidays and then tried the Armidale railway station but they said to try Centrelink or TAFE. She said she did not follow it through as it was too late to receive a card for her daughter’s proposed travel and with Country link, if you book two weeks ahead, you pay half price anyway.
16. The Tribunal notes that the Centrelink file (T13/32) records the Applicant’s inquiry in the following terms “advised cust [the customer] that she would need to apply for a concession card at the TAFE as we do not give half fare concession cards to FTS “. Ms Priestly told the Tribunal she does not remember this phone call and could not say whether she had told Centrelink at the time that she was a TAFE student, but she did agree with Mr Kenny that she probably would have said something like she was applying for a half fare concession card.
17. Mrs Priestly said that the Applicant contacted Centrelink on 16 July 2004 about new accommodation details, about obtaining a duplicate income statement in respect of her YA and obtaining an advance payment of YA ($500); and on 21 July 2004 about her changing employment (T17, 18, 19, 21). Mrs Priestly stated: “After these contacts in person by Mara, Centrelink still maintains she had not left Charles Sturt University at Bathurst,” and that the data match with Charles Sturt University carried out on 29 July 2004, which showed no record of the Applicant, was a “belated and pointless data match in view of information already given”.
18. In respect of special circumstances in this matter, Ms Priestly told the Tribunal that she was happy with the job she had with P&O and that she felt she had finally found the type of work she liked doing. She said that she was stressed because of money difficulties, and in particular her YA debt and the action being taken to recover this debt. She also said that her life had been a struggle with moving and trying to find accommodation, trying to make friends, find the right career path for herself and because of various health issues.
19. Mrs Priestly told the Tribunal that her daughter suffered from stress and anxiety, that she had had glandular fever in 2001, had been critically ill as a result of a fall and had been in hospital for two months at the end of 2002 and had also had a car accident in April 2003. It was Mrs Priestly’s evidence that Ms Priestly also suffered from mouth ulcers, bleeding, persistent tiredness, generally not feeling well, shaking, dizziness, feeling of going to faint, headaches, skin disorder, shortness of breath, pounding and increased heart beat, numbness and stiffness. Mrs Priestly said that her daughter’s health is at a stage where it needs attention and must improve. She said she needs to see a dermatologist and a dentist as well as regular visits to her GP.
20. Ms Priestly said that since starting work with P&O in September 2005 she thought she had had about ten days sick leave, usually a day at a time, that she saw her GP every six weeks or so, and that she was not taking any medication for any of the above conditions. She was unable to say what diagnoses her GP had made about any or her conditions or what further medical tests her GP arranged for her, if any. It was her evidence that she had made two attempts to get medical evidence from her GP but to date had not been able to obtain any medical reports. She said she had been told her immune system was down and that she should pay particular attention to eating properly.
21. Ms Priestly told the Tribunal that her glandular fever symptoms had resolved by the end of 2001, and in 2002 she had been stalked (but not directly confronted) and had to share accommodation with a woman suffering from depression and bipolar symptoms. She described her current accommodation arrangements as satisfactory.
22. Mrs Priestly in her written submissions (Exhibit A1) set out her daughter’s current income expenditure as follows:
Income: $1,038.04 (after deduction of 10 per cent of gross salary)
Expenditure (fortnightly):
·Rent $340
·car payment $115
·food $200
·Gym $19
·Phone $36
·Petrol $100
·Electricity $26
·Credit card repayment $177.81
TOTAL $1013.81
Note: expenditure does not include costs of personal items, household items, clothes, entertainment or leisure.
23. In her oral evidence Ms Priestly said because of her financial difficulties she could no longer register her car and that she now relies on public transport. She said she used a weekly ticket costing about $37. She said her gym membership had expired and she did not intend to renew it. In respect of credit card debts, she said she had debts of about $10,000 which she was reducing and that she no longer used credit cards. She said her circumstances did not allow her to buy anything expensive or for her to enjoy entertainment. She said personal presentation was important in her job and she worried about not been able to buy appropriate clothing. She also worried that at the time she had insufficient money to buy good food and that she could not always find a hundred dollars per week for food as stated in her estimated expenditure.
24. Mrs Priestly told the Tribunal that her daughter had a HECS debt of $13,468 and a Centrelink Student Financial Supplement debt of $7,604. The Tribunal notes that the recovery of these debts will not commence until Ms Priestly’s income level increases, and Ms Priestly said she is unable at present to make any voluntary payments to decrease these debts and that the debts are subject to CPI increases.
25. Mrs Priestly told the Tribunal about an additional debt of $812.18, arising from overpayment of Newstart Allowance which had been added to her daughter’s YA debt early in 2005. She said that since the YA debt had been notified, herself and her daughter had made many attempts to have the case reviewed without success, and sometimes been told abruptly that the debt stands; and that Centrelink’s attitude had contributed “tremendously to the lack of Mara’s well being”. Mrs Priestly said the situation was made worse when instead of a date from Centrelink for an SSAT hearing, her daughter received a demand from Dunn and Bradstreet collection Services for payment of $6,526.86. She said her daughter could not pay this amount and after discussion with Dunn and Bradstreet, eventually arrangements were made for a $20 a month instalment plan. Mrs Priestly said some payments were made but then Centrelink removed the account from Dunn and Bradstreet (on 20 April 2006). Then following her daughter’s employment with P&O, without warning or discussion, in May 2006 garnished her wages by 10 per cent of her gross salary (which averaged about $143 a fortnight), an amount in excess of what had been contracted in the instalment plan. Mrs Priestly said that Centrelink was callous in wiping out the contracted instalment plan without consultation and enforcing a compulsory deduction of 10 per cent of her daughter’s wages.
26. The Tribunal notes that Centrelink records a customer service officer warning Ms Priestly by phone on 6 December 2005 of the possibility of garnishment and legal referral and that the customer was to “call back and make arrangements” (Exhibit R2). Ms Priestly said she could not recall this phone call.
27. The Applicant is of the view that Centrelink determined in February 2004 that payment of her YA would continue while she undertook the TAFE Flexi Link course and that it was not until her YA was suspended in September 2004 that she became aware of a problem. In essence, it was submitted that the Applicant should be able to rely on Centrelink checking the course details and making the correct determination of its status and the Applicant’s eligibility for YA, having been requested by the Applicant to check this status; and that at no time was the Applicant asked to bring back a completed enrolment form. Mrs Priestly submitted that in February 2004 Mara had followed the correct procedures and had been assured by Centrelink of the payment of YA during her Flexi Link TAFE course. And until September 2004 neither the course classification nor her age had been an issue of relevance to her. Mrs Priestly also made the point that if her daughter had not been told that she would continue on YA she could have claimed and received Newstart Allowance. In her written submissions (Exhibit A1, paragraphs 27 and 28) Mrs Priestly states:
“(27) The purpose of presenting the enrolment form before the TAFE enrolling officer’s signature was to see what payment the course qualified for. If Mara had not qualified for Youth Allowance she would have gone onto Newstart.
It was the Customer Service officer role as Centrelink representative to state which benefit was applicable. When the Youth allowance payment was assured ONLY then could Mara to TAFE to be enrolled.
(28)…
It is the responsibility of the Customer Service Officer to see that all details given/needed match the benefit that was confirmed.”
28. Mrs Priestly submitted that Centrelink does make mistakes, that they were only correct 75 per cent of the time, and in this case they made a mistake and that the debt should be waived.
29. It was the Applicant’s contention that the YA debt was not caused by the Applicant making a false representation or omitting to comply with the Social Security Act 1991 but by Centrelink making an administrative error in determining in February 2004 that YA would continue to be paid. It was further submitted by the Applicant that there are special circumstances which would satisfy the Tribunal that any debt should be waived.
30. Mrs Priestly and Ms Priestly stated that they are not intentionally seeking “sympathetic factors and according them paramountcy”, as suggested by the Respondent, but they are relying on the reality and facts of the Applicant’s situation. Mrs Priestly submitted that her daughter had suffered mentally and physically because of a debt she did not create, that she has struggled to educate herself, find the right career path and is working to make herself financially secure.
respondent’s submissions
31. Mr Kenny submitted that what happened on 16 February 2004 in Armidale Centrelink office is critical in determining this matter. He contended that Centrelink does not approve courses of study and that there is no record of Ms Priestly ever submitting a complete enrolment for her 2004 TAFE Flexi Link course. The only way in which Centrelink could take account of her TAFE course is when enrolment is completed and Centrelink is so notified. In this case he submitted that Ms Priestly’s enrolment was completed on 19 February 2004 and she never notified Centrelink of this fact. It was Mr Kenny’s submission that a Rates Notice was issued to Ms Priestly on 16 February 2004 based on information in Centrelink’s records that Ms Priestly was still enrolled in a full-time course at Charles Sturt University; that this notice was issued in response to Ms Priestly wishing to pursue her TAFE enrolment; and that a Rates Notice is really only a snap shot in time and issued to allow an educational institution to consider fee exemptions.
32. Mr Kenny submitted that the enrolment form, as it existed on 15 February 2004, did not indicated whether the Flexi Link course was full-time or part-time and that such a course allowed for distance education, the term Flexi Link referring to the mode of the delivery of learning. Mr Kenny also pointed out that the enrolment form, either at 16 February 2004 or when it was completed on 19 February 2004, did not show any entry in the box “total hours of study”. He submitted that prior to completion of enrolment, there would be no reason to expect the total hours of study to be shown.
33. As to whether Ms Priestly notified Centrelink that she had ceased full-time study, it was Mr Kenny’s submission that she had not done so. Mr Kenny suggested that the main and pressing purpose of her visit to her Centrelink Armidale office on 16 February 2004 was to obtain a Rates Notice so she could complete her enrolment at TAFE; that her visit to the Armidale office in March 2004 was to update accommodation, rental and living arrangements; that Ms Priestly did not take any action or make any inquiry to notify Centrelink that she had stopped being a full-time student, particularly in response to a letter to her from Centrelink dated 22 March 2004 nor did she demur to the oral advice Centrelink gave her on 14 April 2004 that Centrelink cannot issue half fee concession cards to full-time students. Furthermore, Mr Kenny contended that even though Ms Priestly had told Centrelink that she was intending to look for work and was working part-time, this would not be considered unusual as full-time students frequently work part-time or on a casual basis. In respect of Mrs Priestly’s contention about delays in Centrelink action subsequent to the data match in July 2004, Mr Kenny submitted that Centrelink cannot take action to suspend the benefit until the customer has been given the opportunity to explain data matching anomalies and any anomalies have been confirmed; and in this case, a request was sent to Ms Priestly to confirm her enrolment status on 3 September 2004 (T25/47) giving her a deadline to respond by 24 September 2004; that TAFE Armidale on 27 September 2004 provided advice that Ms Priestly was enrolled as a part-time student; and Ms Priestly’s YA was cancelled on 28 September 2004 from day one semester one, namely 9 February 2004. It was Mr Kenny’s submission that a considerable amount of paperwork was involved in bulk data matching and a period of some five weeks from the time of data match to a request to the Applicant for confirmation of her enrolment status was not unreasonable. As such, Mr Kenny submitted that there is no credible evidence of any administrative error on the part of Centrelink.
34. Mr Kenny contended that Ms Priestly had ceased to be entitled to YA during the debt period because she had turned 21 on 15 July 2003, had ceased to be a full-time student and thus ceased to satisfy the activity test as a full-time student. Ms Priestly therefore had incurred the debt because she had received YA to which she was not entitled.
35. In respect of debt waiver, Mr Kenny submitted that there was not an administrative error which would allow consideration of the application of section 1237A(1) of the Act. And in respect of section 1237AAD of the Act, while Mr Kenny accepted that Ms Priestly was in straitened financial circumstances, he submitted that she would be able to repay the debt over time on negotiated settlement terms, and furthermore there were no unusual, uncommon or exceptional circumstances which would warrant waiving the debt.
36. Mr Kenny submitted that Ms Priestly had received public monies to which she was not entitled and taking all of Ms Priestly’s circumstances into account, the decision under review should be affirmed.
consideration
37. There is no dispute between the parties that Ms Priestly turned 21 on 15 July 2003 and that she enrolled in a Flexi Link course in Tourism-Retail Travel Sales at TAFE New England Institute Armidale in February 2004; and the Tribunal so finds. The Tribunal is satisfied that Ms Priestly was not enrolled in any other educational institution in 2004.
38. The Tribunal is mindful that at the hearing of this matter on 6 July 2006, Mrs Priestly expressed some doubts about whether the TAFE Flexi Link course was part-time or full-time, however, on the evidence before it, the Tribunal is satisfied that Ms Priestly was studying this course part-time by mixed mode delivery.
39. It follows from these findings that Ms Priestly pursuant to subsections 543B(1), 541(1) and 541B(2)(b) of the Act, as set out above, was not qualified for YA while she was a student at TAFE Armidale and the Tribunal so finds.
40. The Tribunal is satisfied that Ms Priestly did receive YA whilst she was a student at TAFE and that pursuant to section 1223(1) of the Act, payment of this benefit to her is a debt due to the Commonwealth by her.
41. The quantum of Ms Priestly’s YA debt is not in dispute and in view of this on the material before it the Tribunal finds that Ms Priestly’s YA debt is $5,795.42.
42. The crucial question before the Tribunal is whether this debt should be waived in whole or in part.
43. Ms Priestly is of a view that this debt should be waived because the debt arose from the sole administrative error made by Centrelink, in particular, because a Customer Service Officer told Ms Priestly that she would continue to receive YA while enrolled in her TAFE course. Or in the alternative, Ms Priestly submitted there are special circumstances which would warrant waiving the debt. The Respondent contends that there was no administrative error and there are no special circumstances which would satisfy the Tribunal that the debt should be waived.
44. Clearly resolution of this dispute hinges on determining what took place between Ms Priestly and Centrelink in February 2004. The evidence before the Tribunal in respect of this issue is not free of difficulties. Both Ms Priestly and Mrs Priestly have demonstrated difficulty in recalling details of what happened and what was said by the various parties. Furthermore the presentation of their evidence during the long appeal process has lacked consistency, principally because their recall of events has to some extent been reconstructed as further evidence emerges. The difficulty in determining what actually happened is further compounded by the fact that the Centrelink officer, who dealt with Ms Priestly at the relevant time, is now deceased and there is no direct evidence from her.
45. However, on the material before it, the Tribunal is satisfied that findings of fact can be made on a number of matters that are not contentious and the Tribunal finds as follows:
(a) Ms Priestly attended the Centrelink office at Armidale on 16 February 2004 and spoke to Debbie Howarth, a Centrelink Officer;
(b) Mrs Priestly accompanied her daughter to the Centrelink office on 16 February 2004 but did not speak to Ms Howarth;
(c) Ms Priestly did not have contact with Centrelink at any other time in February 2004 and her next contact with Centrelink was on 13 March 2004;
(d) At the time of her attendance at the Centrelink office on 16 February 2004, Ms Priestly was progressing her enrolment in a TAFE course in Tourism (Retail, Travel Sales);
(e) At the time of her attendance at the Centrelink office on 16 February 2004, Centrelink records showed that Ms Priestly was over 21 and in receipt of YA;
(f) On 16 February 2004 Centrelink issued Ms Priestly with an immediate Rates Notice;
(g) At the visit to Centrelink on 16 February 2004, Ms Priestly had with her a partly completed TAFE enrolment form for the Fexi Link course in Tourism (Retail, Travel Sales) and showed this form to Ms Howarth;
(h) The TAFE enrolment form did not show whether the course Ms Priestly wished to undertake was full-time or part-time, nor did it show how many student hours per week were required;
(i) A TAFE enrolling officer endorsed Ms Priestly’s enrolment form on 16 February 2004 with a notation “YA” in the non payment code box;
(j) A TAFE officer endorsed Ms Priestley’s enrolment form “Enrolment Completed” on 19 February 2004.
46. The question then is whether Ms Howarth told Ms Priestly that her YA would continue because she was undertaking the TAFE course.
47. Ms Priestly, in answer to a direct question from the Tribunal said she did not know if the TAFE course was full-time or part-time and on her own evidence Mrs Priestly did not talk to Ms Howarth. The Tribunal is satisfied that neither Ms Priestly nor Mrs Priestly told Ms Howarth that the course was part-time or full-time and that the details on the enrolment form that was available to Ms Howarth likewise shed no light on the status of the course. And furthermore, at the time of Ms Priestly’s visit to Centrelink on 16 February 2004, her enrolment was still in progress and further action had to be taken subsequently before she could actually say she was enrolled. The Tribunal accepts Mr Kenny’s submission that Ms Howarth was an experienced Centrelink Officer and would have understood the significance of Ms Priestly’s course status at the time of her discussion with Ms Priestly. The Tribunal, after careful consideration of the totality of the evidence, is satisfied that Ms Howarth did not advise Ms Priestly on 16 February 2004 that her proposed course at TAFE would qualify her for YA.
48. The Tribunal accepts that Ms Priestly and Mrs Priestly took away from Centrelink advice that Ms Priestly was receiving YA, as indeed she was. However, the Tribunal is satisfied that any such advice arose from Ms Priestly’s recorded benefit status in respect of her enrolment at Charles Sturt University. The Tribunal is mindful that, on her own evidence, Ms Priestly had ceased full-time study at Charles Sturt University in 2002; that she had been enrolled in another full-time course at UNE Armidale in 2003 and that she had undertaken one year of study in this course without completing her final exam and was no longer enrolled in the course in 2004.
49. Ms Priestly told the Tribunal that she had not notified Centrelink of her changes in her university courses. The Tribunal is satisfied that she was aware of the need to keep Centrelink informed of such changes but failed to do so. As such, the Tribunal is of the view that Ms Priestly must shoulder, at least, some of the blame for the unhappy circumstances of her YA debt. Had Ms Priestly informed Centrelink that she was no longer enrolled in a full-time course at Charles Sturt University or UNE, it is unlikely that any YA debt would have been raised. For the provisions of section 1237A of the Act to apply, a debt must be attributable solely to an administrative error made by the Commonwealth and the Act does not allow waiver where a debt was caused partly by an error by a debtor.
50. A further question which should be addressed is whether Centrelink should have acted earlier in stopping payment of Ms Priestly’s YA. Clearly Mrs Priestly thinks they should have and that, putting aside her contention that Centrelink gave Ms Priestly a wrong answer on 16 February 2004, she claimed that Centrelink knew that Ms Priestly was a student at TAFE in April 2004 as evidenced by their own records. Therefore action should have been taken to ascertain her student’s status long before the requested data match on 29 July 2004 and if this had been done, the debt would be much less. Furthermore, Mrs Priestly said Centrelink had been too slow to stop paying the Applicant‘s YA once they had information from Charles Sturt University that her daughter was no longer enrolled as a full-time student. Mrs Priestly also complained that action taken by Centrelink to recover the debt due to the Commonwealth by her daughter had been taken without proper warning and without a proper consultation. In this respect Mrs Priestly refers to the Respondent putting the matter in the hands of Dunn and Bradstreet and then garnishing her daughter’s wages at an excessive rate of 10 per cent, even though an instalment plan had been in place.
51. The Tribunal has looked carefully at these circumstances and in the first instance accepts Mr Kenny’s submission that the time taken to stop payment of the Applicant’s YA after the data match is reasonable. In respect of Centrelink knowing that Ms Priestly was a TAFE student in April 2004 and that this should have prompted earlier action, it is not clear exactly what prompted Centrelink to refer Ms Priestly to TAFE to obtain the travel concession card and in any event what occurred between Ms Priestly and Centrelink in April 2004 does not excuse Ms Priestly from disregarding her obligation to inform Centrelink of ceasing full-time university studies.
52. The Tribunal is satisfied that Ms Priestly’s debt is not attributable solely to an administrative error made by the Commonwealth and that Ms Priestly’s debt can not be waived under section 1237A of the Act.
53. Turning then to whether Ms Priestly’s debt can be waived because of special circumstances. The first question before the Tribunal is whether there are the special circumstances (other financial hardship alone) that make it desirable to waive the debt.
54. “Special circumstances” is not defined in the Act, however its meaning has been considered by the Federal Court.
In Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3 Toohey J stated:
“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 have a particular quality of unusualness that permits them to be described as special.”
On appeal (1985) 7 ALD 670 at 674 the Full Federal Court reinforced the need to avoid limiting the scope of what might constitute special circumstances, stating:
“We do not think it is possible to lay down precise limits or precise rules. The matter is one for the Director-General bearing in mind the purpose for which the power is given. The phrase ‘special circumstances’, although lacking precision, is sufficiently understood in our view not to require judicial gloss.”
In Groth v Secretary, Department of Social Security (1995) 40 ALD 54, at 545, Keifel J, referred to the Federal Court’s decision in Re Beadle and Director-General of Social Security (1984) 6 ALD 1, and said that special circumstances:
“would require something to distinguish Mr Groth’s case from others, to take it out of the usual or ordinary case…It would of course follow that if one were to conclude that something unfair, unintended or just had occurred that there must be some feature out of the ordinary.”
In Riddell v Secretary, Department of Social Security (1993) 30 ALD 31, the Full Court of the Federal Court said at page 38:
“Each particular case must be considered on its merits. It is the essential nature of the provision to create a broad discretion to meet the great variety of circumstances which must occur, raising considerations of individual hardship, need, fairness, reasonableness, and whatever else may move an administrator, keeping in mind the scope and purposes of the Act, to make a decision one way or the other.”
55. The Tribunal accepts Ms Priestly has faced a number of difficulties in finding her feet and it is to her credit that she has come through these difficulties and, apart from financial worries and some health issues, now appears to have her life in order. She is, on her own evidence, now happy in her chosen vocation and in her job, and her accommodation difficulties seem to be resolved. Her health clearly could be better and it is to be hoped that now that her job and accommodation circumstances have improved, so will her health. In assessing her health situation the Tribunal is mindful that the various ailments from which she claims to suffer are not the subject of any written medical reports and while she sees her GP regularly she is not undergoing medical tests or taking any medication. The Tribunal has also noted that her sick leave record, over ten months or so that she has been employed with P&O, is not unusual or exceptional. The Tribunal is satisfied that Ms Priestly’s health issues are not such that they can be classified as special circumstances within the meaning of that term as set out above.
56. In respect of her financial circumstances, Ms Priestly has a significant HECS debt and a significant Centrelink student financial supplement debt, recovery of which are both in abeyance until her salary level increases to the stipulated level. This situation is not unusual, uncommon or exceptional.
57. Her daily living expenses compared with her income, coupled with repayment of large credit card debts, shows that she is in straitened financial circumstances. However, she has ceased her gym membership, and is no longer running her car and this should improve her financial circumstances. The Tribunal is satisfied that her financial circumstances, whilst straitened and stressful, are not such that they can be categorised as special circumstances.
58. A further issue to be considered is whether Ms Priestly had a notional entitlement to Newstart Allowance and whether any such notional entitlement should be taken into account when considering special circumstances. In Schulze and Secretary, Department of Family and Community Services [2004] AATA 705, Deputy President Jarvis noted that in the past notional entitlement has been found to constitute part of the factual matrix of special circumstances in several cases, but he went on to state:
“However, I note that the entitlement in the circumstances provided for in S1237AAC. That provision provides for set-off of notional entitlement in only very limited circumstances and by reference to specific payments. It was the respondent’s contention that any attempt to expand notional entitlement by virtue of the special circumstances provision would defeat the intention of Parliament. I think this submission is well founded.”
59. In Varhegyi, Secretary, Department of family and Community Services [2005] AATA 635, Deputy President Forgie agreed with Deputy President Jarvis and stated “There was no room to introduce a concept of notional entitlement in that of special circumstances” in S1237AAD(1) of the Act.
60. The Tribunal adopts the position taken by Deputy President Forgie and therefore is satisfied that any notional entitlement which Ms Priestly may have had to Newstart Allowance is not a matter relevant to consideration of special circumstances in this case.
61. After consideration of all of Ms Priestly’s circumstances the Tribunal is satisfied that there are no special circumstances which should warrant the waiving of Ms Priestly’s debts and the Tribunal so finds.
62. For the reasons given above the Tribunal is satisfied that the decision to raise and recover from Ms Priestly a YA debt of $5,795.42 is correct.
63. The Tribunal feels constrained however to comment that it would seem to be appropriate for Centrelink to discuss with Ms Priestly her current financial position with a view to determining a fair and reasonable deduction plan for recovery of her YA debt.
64.The Tribunal affirms the decision under review.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member.
Signed: A. Garcia
AssociateDate of Hearing 6 July 2006
Date of Decision 21 August 2006
Representative for the Applicant Mrs N. PriestlyAdvocate for the Respondent Mr J. Kenny
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