Robin Fletcher and Secretary, Department of Social Services
[2015] AATA 43
•28 January 2015
[2015] AATA 43
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/3494
Re
Robin Fletcher
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member CR Walsh
Date 28 January 2015 Place Perth The Tribunal affirms the decision under review.
...(Sgd) CR Walsh...................
Senior Member CR Walsh
CATCHWORDS
SOCIAL SECURITY – youth allowance – qualification for youth allowance - activity test - undertaking full-time study – normal amount of full-time study – alternative meaning of normal amount of full-time study - debt due to the Commonwealth – write-off – waiver – debt not solely attributable to administrative error made by Centrelink – “no special circumstances” - decision under review affirmed
LEGISLATION
Higher Education Support Act 2003
Social Security Act 1991 – s 540 – s 541(1)(a) – s 541B(1) – s 541B(1A) - s 541B(2) – s 541B(3) – s 1236 – s 1237A(1) – s 1237A(1A) – s 1237AAD
Social Security Administration act 1999 – s 80(1)
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Sekhon v Secretary, Department of Family and Community Services (2003) 132 FCR 126
SECONDARY MATERIALS
Guide to Social Security Law – s 3.2.7.70
REASONS FOR DECISION
Senior Member CR Walsh
28 January 2015
INTRODUCTION
Mr Fletcher seeks review of a decision of the Social Security Appeals Tribunal (SSAT), dated 5 June 2014, which affirmed the decision of a Centrelink authorised review officer (ARO), dated 23 April 2014, to cancel Mr Fletcher’s youth allowance payments and to raise a debt of $1,223.14 resulting from overpayment of youth allowance in the period from 24 February 2014 to 5 March 2014.[1]
[1] The ARO had, in turn, affirmed the decision of a Centrelink officer, dated 25 March 2014.
FACTUAL & PROCEDURAL BACKGROUND
Mr Fletcher is enrolled in a Bachelor of Music degree at Edith Cowan University (ECU).
Mr Fletcher has received youth allowance during some periods since 30 January 2008, and most recently from 8 March 2012.
Mr Fletcher’s ECU “Confirmation of Enrolment” shows that for the 2014 academic year, Mr Fletcher was enrolled in 2 units for Semester 1 and 2 units for Semester 2 and that each unit attracted:
· 15 credit points (being a total of 30 credit points per Semester or “Study Period”); and
· an Equivalent Full Time Student Load (EFTL) of 0.125 (representing a total EFTSL of 0.250 per Semester or “Study Period”).
On 11 March 2014, Centrelink suspended Mr Fletcher’s youth allowance pending enquiries about his entitlement to it.
On 25 March 2014, a Centrelink officer made a decision to:
· cancel Mr Fletcher’s youth allowance; and
· raise a debt of $1,223.14 in relation to amounts of youth allowance paid to Mr Fletcher in the period 24 February 2014 to 5 March 2014, when he was considered not to be qualified for youth allowance because he was not undertaking full-time study in his Bachelor of Music degree at ECU (Original Decision).
On 25 March 2014, Mr Fletcher sought an internal review of the Original Decision by Centrelink.
On 23 April 2014, a Centrelink ARO affirmed the Original Decision (ARO Decision).
On about 23 April 2014, Mr Fletcher repaid his youth allowance debt (of $1223.14) in full.
On 5 May 2014, Mr Fletcher sought review of the ARO Decision by the SSAT.
On 5 June 2014, the SSAT affirmed the ARO Decision (SSAT Decision).
On 7 July 2014, Mr Fletcher applied to the Tribunal for a review of the SSAT Decision.
ISSUES
The issues for consideration by the Tribunal are:
(a)whether the decision to cancel Mr Fletcher’s youth allowance was correct;
(b)whether Mr Fletcher has a debt to the Commonwealth of $1,223.14, resulting from overpayment of youth allowance; and
(c)if so, whether that debt should be written-off or waived.
ANALYSIS
(a) Was the decision to cancel Mr Fletcher’s youth allowance correct?
Section 540 of the Social Security Act 1991 (SSA) sets out the general qualification criteria for youth allowance as follows:
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 Employment Pathway Plans 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). [Emphasis added]
It is not in dispute that, in the 2014 academic year, Mr Fletcher satisfied s 540(b), (c) and (d) of the SSA. What is in dispute is whether, in the 2014 academic year, Mr Fletcher satisfied the “activity test” in s 540(a)(i) of the SSA and, therefore, qualified for youth allowance.
Section 541(1)(a) of the SSA provides that a person satisfies the “activity test” for youth allowance if the person satisfies the Secretary that, throughout the period, the person is “undertaking full-time study”, within the meaning of s 541B of the SSA. Section 541B of the SSA states:
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 unusual 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. [Emphasis added]
It is not in dispute that, in the 2014 academic year, Mr Fletcher satisfied s 541B(1)(a)(i), (b)(i), (c) and (d) of the SSA and that s 541B(1A) of the SSA did not apply to Mr Fletcher. What is in dispute is whether, in the 2014 academic year, Mr Fletcher satisfied s 541B(1)(b)(iii) of the SSA. That is, it is in dispute whether, in the 2014 academic year, Mr Fletcher undertook “at least three-quarters of the normal amount of full-time study” in respect of his Bachelor of Music degree such that he was “undertaking full-time study” (under s 541B of the SSA), satisfied the “activity test” (in s 541(1)(a) of the SSA) and qualified for youth allowance under s 540(a)(i) of the SSA.
This issue turns on the meaning of the expression “normal amount of full-time study”.
Section 541B(2) of the SSA provides:
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. [Emphasis added]
However, s 541B(3) of the SSA provides the following “alternative” meaning of the expression “normal amount of full-time study”:
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. [Emphasis added]
It is common ground that a Bachelor of Music degree at ECU is a “course of study within the meaning of the Higher Education Support Act 2003 (HESA)”, for the purposes of s 541B(2)(a)(i) of the SSA, and that there are “Commonwealth supported students (within the meaning of the [HESA])”, for the purposes of s 541B(2)(a)(ii) of the SSA.
Mr Fletcher’s contention is that it is appropriate in his particular circumstances to apply the “alternative” definition of “normal amount of full-time study” in s 541B(3) of the SSA (i.e. instead of the meaning of “normal amount of full-time study” in s 541B (2)(a) of the SSA) and that he satisfied the s 541B(3) definition in the 2014 academic year as his contact hours exceeded 20 hours per week.
In a document titled ‘Centrelink “I want to ask for a review under the Freedom of Information Act”’, Mr Fletcher stated that his total contact hours per week in the 2014 academic year reached 31.5 hours per week. Further, in a letter to Mr Fletcher, dated 14 March 2014, Ms Patricia Price, Coordinator of Vocal Studies and Opera, Western Australian Academy of Performing Arts, stated that all students must attend afternoon rehearsal periods for public performances as a compulsory part of the course and that Mr Fletcher is required to attend rehearsals between 2pm and 6pm daily (except Friday), when between 4.30 and 6.30pm. Ms Price’s letter also stated that the expected daily attendance hours for students are always 8.30am to 6pm and the afternoon hours are schedules for Extension Studies and Ensembles which are an essential part of the Bachelor of Music course and that the afternoon hours are in addition to the schedules classes attended in the morning, Monday to Friday. This letter suggests that, in the 2014 academic year, Mr Fletcher’s weekly contact hours exceeded 20 hours per week.
In his signed “Response to the Statement of Facts, Issues and Contentions of the Respondent by the Applicant”, dated 16 October 2014, Mr Fletcher states:
29.…..university weightings of units and credit points do not necessarily reflect actual study load.
30.I would like to contend that 541B(2) is by its very nature entirely inclusive and as such is 541B(3) is to ever apply it must apply to a situation in which 541B92) has already applied. 541B(2) can apply to any and in fact every course that one could study. I would also like to contend that there is more than 1 way in which 541B(3) could be considered to limit 541B(2). That given its nature as an Alternative meaning of normal amount of full-time study it can in fact only be applied in situations where the normal meaning applies as well, otherwise it is not an alternative meaning, but simply a further definition. The Alternative definition as it is currently applied most certainly does not limit the normal definition in cases where the number of contact hours that students attend does not meet the 20 hour (or 15 for three quarters) threshold…..
The Tribunal considers that the “normal amount of full-time study” for a Bachelor of Music degree at ECU is to be determined in accordance with the definition in s 541B(2)(a) of the SSA and not under the “alternative” definition in s 541B(3) of the SSA. Section 541B(2)(a) of the SSA states that the “normal amount of full-time study” in respect of a course is the “full-time student load for the course”. The full-time student load for a Bachelor of Music degree at ECU is 60 credit points each Semester (or an EFTL of 0.5 per Semester).
Where a tertiary educational institution, such as ECU, has determined the full-time student load for a course, the “normal amount of full-time study” should be measured on that basis for the purposes of s 541B(2) of the SSA and that the “alternative” meaning of “normal amount of full-time study”, in s 541B(3) of the SSA, should only apply where it is not possible to readily determine whether a person is a “undertaking full-time study” on the criteria set out in s 541B(2) of the SSA. To this end, the Tribunal notes that s 541B(3) of the SSA is expressly stated not to limit s 541B(2) of the SSA.
The additional rehearsal time that Mr Fletcher was required to undertake as part of his Bachelor of Music degree at ECU has not been allocated any credit points or given any weighting for EFTSL purposes by ECU and therefore it should not be taken into account when assessing Mr Fletcher’s “normal amount of full-time study” for youth allowance purposes.
In relation to this issue, the Tribunal notes s 3.2.7.70 of the Guide to Social Security Law (Guide), which states:
Assessment of the normal amount of full-time study in a particular period will depend upon the circumstances of each case and will depend on matters such as how the course is structured and how enrolments are accepted. However, a student undertaking study on a trimester or semester basis may be considered to be a full-time student when:
·the university's normal period of enrolment is a year or equivalent period (whether the units being undertaken are trimester or semester base or annual) and the student maintains an aggregate equivalent full-time study-load (EFTSL) of 75% of a normal amount full-time study for their course over the year, or
·the student is enrolled on a trimester or semester basis rather than a full year enrolment and the student maintains an aggregate EFTSL of at least 75% of a normal amount of full-time study for their course over the trimester or semester.
Measuring the normal amount of full-time study
A student intending to enrol in, or undertake at least 75% of the normal amount of full-time study for a course for any given period is deemed as a full-time tertiary student (1.1.F.230).
For a course of study offered by a higher education provider under the Higher Education Support Act 2003, the normal amount of full-time study for that period is determined by the higher education provider under the Administration Guidelines under that Act.
If the course is not such a course, the normal amount of full-time study is the amount the institution defines as the amount of full-time study that a full-time student should typically undertake in respect of the course in the period. If the institution does not define such an amount, the amount of full-time study is an amount equivalent to the average amount of full-time study that a person would have to undertake in the period for the duration of the course in order to complete the course in the minimum amount of time needed to complete it. Otherwise, the normal amount of full-time study is on average a minimum of 20 hours per week.
Where a course has some form of practical training off campus, if the educational institution gives this component an EFTSL weighting, the hours are to be counted in the calculation of study-load. If the institution allocates a different weighting system to the practical placement (such as points, credits or units) then the study-load can be measured against the method meaning that the practical placement will count towards the study-load. If the practical placement is given no weighting at all by the institution, then it cannot contribute towards the study-load. [Emphasis added]
The Guide contains policy designed to assist those administering the SSA. The Tribunal is not bound by the policy, but must take it into account and will ordinarily apply the policy unless there are cogent reasons for not doing so: see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 639-645. The Tribunal considers that the above policy is consistent with the legislation and should be applied.
In order to satisfy s 541B(1)(b)(iii) of the SSA (i.e. to be “undertaking full-time study”) in the 2014 academic year, Mr Fletcher was required to undertake at least three-quarters of the “normal amount of full-time study” applicable to his Bachelor of Music degree at ECU (i.e. at least 45 credit points each Semester or an EFTL of 0.375 per Semester). This was not the case. It follows that, in the 2014 academic year, Mr Fletcher did not satisfy the “activity test” in s 541(1)(a) of the SSA and was not qualified for youth allowance under s 540 of the SSA.
In such circumstances, the the Secretary was required by s 80(1) of the Social Security (Administration) Act 1999 (SSAA) to cancel or suspend Mr Fletcher’s youth allowance.[2] Accordingly, the decision to cancel Mr Fletcher’s youth allowance was correct.
[2] Section 80(1) of the SSAA provides that if the Secretary is satisfied that a social security payment is being, or has been, paid to a person who is not, or was not, qualified for the payment, the Secretary is to determine that the payment is to be cancelled or suspended.
(b) Does Mr Fletcher have a debt due to the Commonwealth?
Since Mr Fletcher was not “undertaking full-time study” in the 2014 academic year, and was therefore not qualified for youth allowance, it follows that he was not entitled to any youth allowance payments in the period from 24 February 2014.
Pursuant to section 1223(1) of the SSA, any amounts of youth allowance that Mr Fletcher received when he was not undertaking full-time study constitute a debt to the Commonwealth.[3] Further, based on the evidence, the amount of the debt raised by Centrelink, namely $1,223.14, was correctly calculated.
[3] Section 1223(1) of the SSA provides that if a social security payment is made and the person who obtains the benefit of the payment was not entitled to that payment, the amount of the payment is a debt due to the Commonwealth by the person.
(c) Should Mr Fletcher’s debt be written off or waived?
Since the debt raised against Mr Fletcher has been repaid in full by Mr Fletcher, it is inappropriate to consider whether the debt may be written off under s 1236 of the SSA.
Notwithstanding that Mr Fletcher has fully repaid his youth allowance debt, the Tribunal considers below whether the right to recover the debt can be waived as it is attributable solely to administrative error made by Centrelink (under s 1237A(1) of the SSA) or on the basis of “special circumstances” (under s 1237AAD of the SSA).
Waiver of debt attributable solely to administrative error
Section 1237A(1) of the SSA provides that the Secretary must waive the right to recover any proportion of a debt that is attributable solely to an administrative error made by the Commonwealth.
Mr Fletcher kept a record of a telephone conversation he had with Centrelink on 12 February 2014, which differs from Centrelink’s record of that conversation. The SSAT Decision notes the following in relation to this issue:
21.Mr Fletcher’s evidence was that he knew being enrolled part time would affect his eligibility for youth allowance and was anxious to find a solution to this. He researched the issue and concluded that he could be assessed on the basis of hours of study. He contacted Centrelink to discuss his situation on 12 February 2014 and his recollection and notes of that discussion was that he would be assessed on the basis of his hours of study. He says this is why he did not advise Centrelink that he was enrolled as a part time student.
22.Mr Fletcher agrees that the Centrelink record of that discussion differs from his recollection and does not understand why. According to the Centrelink record Mr Fletcher made contact on 12 February 2014 to query the study load required for youth allowance. He was advised that:
That study load requirements can vary depending on the type of course, i.e. study load for TAFE courses are generally assessed based on hours per week, where university study is generally based on credit points…at Edith Cowan University a full time student normally enrols in 60cps in each semester.
In relation to the telephone conversation that Mr Fletcher had with Centrelink on 12 February 2014, the receipt number of 231996 provided to Mr Fletcher differs from the receipt number of 469327 contained in Centrelink’s record of the conversation. Further, Centrelink’s records confirm that multiple receipt numbers were issued on 12 February 2014, and an email was provided which offers an explanation as to why this might happen. However, there is no alternative online document of any different telephone conversation.
Even if there was some administrative error made by Centrelink, Mr Fletcher’s youth allowance debt was also caused by Mr Fletcher failing to advise Centrelink that he was enrolled in his Bachelor of Music degree in the 2014 academic year on a part-time, rather than a full-time, basis. In such circumstances, it cannot be said that any proportion of Mr Fletcher’s debt is “attributable solely to” an administrative error made by Centrelink for the purposes of s 1237A(1) of the SSA.[4]
[4] See Sekhon v Secretary, Department of Family and Community Services (2003) 132 FCR 126 at [35].
In any event, by virtue of s 1237A(1A) of the SSA, s 1237A(1) of the SSA has no application in this case. Section 1237A(1A) of the SSA states:
(1A) Subsection (1) [i.e. s 1237A(1) of the SSA] only applies if:
(a)The debt is not raised within a period of 6 weeks from the first payment that caused the debt; or
(b)if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period.
The period of the debt is 24 February 2014 to 5 March 2014 and the date of the first (and only) payment giving rise to the debt is 6 March 2014. The debt was raised on 25 March 2014, which is within 6 weeks of 6 March 2014. Accordingly, pursuant to s 1237A(1A) of the SSA, s 1237A(1) of the SSA does not apply in this case.
Waiver of debt in “special circumstances”
The Secretary may waive the right to recover all or part of Mr Fletcher’s debt under s 1237AAD of the SSA if satisfied that:
(i)the debt did not arise wholly or partly from Mr Fletcher knowingly:
(a)making a false statement or representation; or
(b)failing to comply with a provision of the SSA or SSAA;
(ii)there are “special circumstances” that apply (other than financial hardship alone) that make it desirable to waive the debt; and
(iii) it more appropriate to waive than to write off the debt.
In his signed “Response to the Statement of Facts, Issues and Contentions of the Respondent by the Applicant”, dated 16 October 2014, Mr Fletcher acknowledges (at paragraph 57) that his circumstances cannot be considered “special” circumstances. Accordingly, it is inappropriate for Mr Fletcher’s youth allowance debt to be waived under s 1237AAD of the SSA.
DECISION
For the above reasons, the Tribunal affirms the decision under review.
I certify that the preceding 44 (forty four) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh ....(Sgd) T Freeman................
Associate
Dated 28 January 2015
Date of hearing 22 January 2015 Applicant In person Representative for the Respondent Ms A Ladhams Solicitors for the Respondent Australian Government Solicitor
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Social Security Act 1991
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Youth Allowance
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Activity Test
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Full-Time Study
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Overpayment
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Debt Write-Off
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