Robson and Secretary, Department of Family and Community Services

[2002] AATA 721

DECISION AND REASONS FOR DECISION [2002] AATA 721

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2001/969

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      REGINALD ROBSON       
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Mr O Rinaudo, Member    

Date2 May 2002

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.           

..................(Sgd)........................
  Mr O Rinaudo
  Member
CATCHWORDS
SOCIAL SECURITY – Austudy – overpayment – whether debt correctly raised – whether administrative error – whether special circumstances exist to warrant the waiver of the debt 
Social Security Act 1991

WRITTEN REASONS FOR ORAL DECISION

2 May 2002 Mr O Rinaudo, Member                

1. The applicant in these proceedings, Reginald Robson, appeals against the decision of Centrelink made on 18 May 2001 to raise and recover an overpayment of Austudy in the sum of $6,574.56 for the period 6 March 2000 to 11 May 2001.  This decision was reviewed by an authorised review officer on 4 September 2001 and was affirmed, and was again affirmed by the Social Security Appeals Tribunal on 15 October 2001.

2. Essentially the facts as presented to the Tribunal today are not different to the facts presented to the Social Security Appeals Tribunal.  Mr Robson was granted Austudy in 1999 to undertake full-time study as a student at the School of Ministries in early 2000.  Mr Robson was advised that his grades were not good enough and his study was terminated.  Mr Robson says that on 10 February 2000 he attended at Centrelink and lodged a Newstart application form.

3. Mr Robson continued to be paid Austudy and did not inform Centrelink that he had ceased full-time study.  He received a number of letters from Centrelink, the earliest of which was on 6 March 2000 (T documents, pp 27-29), which clearly noted that Mr Robson was still being paid Austudy and that he should notify Centrelink if he was not a full-time student.  Mr Robson did not, he tells the Tribunal, take much notice of the matters at the top of the letter although he says he did read the letters from Centrelink.  Mr Robson says that the application for Newstart Allowance made on 10 February 2000 was his notification to Centrelink that he was no longer studying full-time.

4. Mr Robson completed an application form which is Exhibit 4, titled "Student Financial Supplement Application and Agreement", on 10 January 2001 in which he ticked the box that he was receiving Austudy payment.  Mr Robson says that he may have been confused on that day as he had some ten days before witnessed the arrest of a person outside of his residence at gunpoint.  He says that he may well have been in shock when he ticked that box.  It does not appear that that evidence was presented to the Social Security Appeals Tribunal.

5. In addition, on 21 September 2000, Mr Robson completed an application for advance payment.  In that document he listed the type of social security payment he was getting as Austudy.  Mr Robson explains this by saying that he probably wrote that there out of habit, although the Tribunal notes that Mr Robson apparently received Newstart for a lengthy period of time between 1991 and 1999 so if he was likely to write anything out of habit one would think that he would have written that he was on Newstart.

6. In any event, the subsequent documents, together with the letter of 6 March, satisfy me that Mr Robson did not notify Centrelink that he was not studying full-time and, consequently, a debt has arisen as a result.  It would seem to me that it is more likely than not, given the documents Exhibits 2 and 3 and the boxes that have been marked there with respect to Austudy payment, that Mr Robson did not lodge an application on 10 February 2000 for Newstart Allowance.

7. Mr Robson says that he thought he was receiving Newstart Allowance although he was not required to put in fortnightly claim forms, nor was he required to seek work;  although he says he was looking for work there was no formal reporting process.  And although he had been on Newstart for a considerable time he thought that there had possibly been a change to this and this is why he did not think anything of it.  Mr Robson told the Tribunal that he is now on Newstart and is doing all of these things.  The Tribunal cannot accept his evidence in that regard.

8. One of the other matters that led me to the conclusion that the application for Newstart was not lodged on 10 February was the CRAM report provided by Centrelink marked Exhibit 2 which notes that there was no computer contact with Mr Robson during the period 1 February 2000 to 1 March 2000.

9. I have considered whether the debt should be waived and am satisfied that the debt cannot be waived under s 1237A as the debt did not occur as a result of error on behalf of Centrelink either wholly or at all, and I am satisfied that the Social Security Appeals Tribunal has correctly decided that point. 

10. I am also satisfied that the debt cannot be waived under s 1237AAD for two reasons:  one, I am not satisfied that the debt did not arise as a result of Mr Robson failing or omitting to comply with the provision of the Act;  I am also satisfied that there are no special circumstances in this case, nor that did Mr Robson seek to put forward any special circumstances in this case.

11. Accordingly, the Tribunal affirms the decision of the Social Security Appeals Tribunal.

    I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member

    Signed:         .....................................................................................
      Associate

    Date of Hearing  2 May 2002
    Date of Decision  2 May 2002
    Date of Written Reasons         23 August 2002

    The Applicant Appeared in Person
    Solicitor for the Respondent    Ms Dwyer, Departmental Advocate