Rockliffe; Secretary, Department of Family and Community Services

[2004] AATA 1198

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1198

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   Q2004/194

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And KEITH ROCKLIFFE

Respondent

DECISION

Tribunal Ms M J Carstairs, Member

Date12 November 2004  

PlaceBundaberg

Decision The Tribunal sets aside the decision under review and substitutes the decision that the respondent has a debt of youth allowance for the period 30 August 2002 to 12 March 2003 in the sum of $5,278.71.

....................[Sgd]…....................

M J Carstairs

Member

CATCHWORDS

SOCIAL SECURITY – youth allowance – undertaking full-time study – whether undertaking study in period for which enrolled or intended to be enrolled – failure to notify change of circumstances – recovery of debt – whether special circumstances

Social Security Act 1991 ss 541B, 1223, 1237AAD

Re Sands and Secretary, Department of Family and Community Services [2004] AATA 754
Groth v Secretary, Department of Social Security (1996) 40 ALD 541
Re Beadle and Director‑General of Social Security (1984) 6 ALD 1

REASONS FOR DECISION

12 November 2004     Ms M J Carstairs, Member

1.        This is an application by the Secretary, Department of Family and Community Services (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 12 February 2004 which varied a Centrelink decision that the respondent had incurred a debt of youth allowance and found that while the respondent had incurred a debt it was only for the period 30 August 2002 to 25 October 2002.  The SSAT referred the matter back to Centrelink so that the amount of the debt could be re-calculated.  The applicant considers that the SSAT erred in deciding that the amount of the debt should be reduced. 

2.        At the hearing in Rockhampton on 10 November 2004 the applicant was represented by Ms J Dwyer, a departmental advocate.  The respondent was self-represented. 

3. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and exhibits marked A1-A4 for the applicant.

BACKGROUND

4.        The respondent was born on 27 June 1980 and is now aged 24.  On 20 May 2002 he had claimed this allowance as he had enrolled in an undergraduate degree in Bachelor of Arts (Engineering) at the Rockhampton Campus of the Central Queensland University.  He received youth allowance in 2002, and in 2003. 

5.        On 28 January 2003 Centrelink received information about the respondent’s student status as a result of a data match which showed that he had withdrawn from 2 subjects in his undergraduate degree by 30 August 2002.  Centrelink later decided to raise an overpayment.  The notice of debt stated that the respondent had been overpaid $5278.71 for the period 30 August 2002 to 2 March 2003 (T23).  The respondent sought review of this decision, firstly with an authorised review officer and then with the SSAT.  When the SSAT varied the decision to provide that the respondent only had a debt for the period 30 August 2002 to 25 October 2002 the applicant sought review of this decision on 12 March 2004.

EVIDENCE

6.        The documentary materials included enrolment advices from Central Queensland University showing that in the winter term 2002 the respondent had recorded against his academic record 2 entries for two subjects withdrawn with penalties.  The authorised review officer conducted enquiries with Central Queensland University and obtained the information that the respondent needed to withdraw by 5 August 2002 to avoid a penalty being imposed and that a relevant Department of Employment, Education, Training and Youth Affairs census date was 30 August 2002.  Centrelink has adopted the date of 30 August 2002 in the absence of a clear date in August (after 5 August 2002) when the respondent formally withdrew from the subjects.

7.        The Central Queensland University materials showed that the university terms were the 12 week autumn term from March to June 2002, the 12 week winter term from 15 July 2002 to 25 October 2002 and two 6 week terms, the spring and summer terms in the period from November 2002 through to February 2003, all terms having vacation periods of varying lengths between them.  It was not disputed that the respondent was not enrolled in the spring and summer terms and he said that it was quite usual for full-time undergraduates to complete their degrees through attendances only in the autumn and winter terms. 

8.        In a document dated 13 September 2004, Ms J Field from Central Queensland University stated that the respondent would not have been able to enrol in the spring and summer terms 2002 to 2003 because there were no courses available in the Bachelor of Arts programme for those terms that year.  She also said that the respondent enrolled for the 2003 autumn term on 10 March 2003 and could have enrolled for it at any time after 15 October 2002.    

9.        The respondent said that he commenced his first year studies at Central Queensland University in a Bachelor of Arts (Engineering) in March 2002.  He said that he was having difficulty with the subjects in the course and he advised the university that he would drop 2 of the 4 subjects that he was studying.  He said that he went to Centrelink and told an officer that he was going to do this and the Centrelink officer said that he would receive a letter and an appointment time for further interview.  The respondent said that he received neither but did not think about it further.  The respondent was unclear about when he went to Centrelink but he agreed that he had told the SSAT that it was about June or July 2002.

10.      The respondent said that he continued to receive forms in relation to his youth allowance payments and completed many of these with the information that he was studying “full-time”.  He said he did so because he was enrolled in a full-time degree even though he had been unable to continue with all his subjects.  He acknowledged that he now understood that for Centrelink purposes this was not full-time study but he maintained that he held an honest belief that he was undertaking a full-time degree at the time he was completing the youth allowance forms.  He said that despite the difficulties that he experienced in 2002 with his studies he always intended to enrol in 2003 and he did so in March that year and commenced a complete workload of subjects again.

11.      The respondent said that he had carried out all his necessary obligations to Centrelink when he told the Centrelink officer that he had dropped 2 subjects.  He said that it was Centrelink’s error not to send him the promised follow-up materials and an appointment time and, for this reason, he should not be responsible for the debt. 

12.      The respondent said that he is able to cope with recovery of the debt which is occurring through withholdings of $30 per fortnight from his social security payments.  He said that when he reduced his study workload to half the number of subjects in 2002 he then actively looked for work though he was unsuccessful in doing so.  He said that he could not provide any details of businesses of where he had sought employment as it was a long time ago.  However, he said that a computer filenote in the documents, dated 5 November 2002 (T18) which recorded Customer phoned to make appointment interview for job seeker supported his argument that he was actively looking for work after he had reduced his university workload to half.

CONSIDERATION OF THE ISSUES

13.      The provisions in the Social Security Act 1991 (the Act) dealing with youth allowance are at Part 2.11 of the Act.  These provisions allow for payment of youth allowance to young people until age twenty-five (if in full-time education) or until age twenty-one (if not in full-time education).  Qualification for youth allowance requires that the person satisfy the youth allowance activity test.  Section 541(1) of the Act effectively provides that full-time study is one basis on which the youth allowance activity test is satisfied. Section 541B then sets out the meaning of full-time study:

541B(1) General.  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.

14. The overpayment of youth allowance which has been raised in this case is dealt with in the provisions at Part 5.1 of the Act, in particular s1223 of the Act.

1223(1)          Subject to this section, if:

(a)       a social security payment is made; and

(b)a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;

the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.

1223(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)       …..

(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;…..

15.      The provisions dealing with non-recovery of debts are also in Part 5.1 of the Act.  In special circumstances a debt may be waived, as provided in s1237AAD of the Act:

1237AAD       The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

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

(i)making a false statement or 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.

16. Ms Dwyer submitted that the SSAT was wrong to conclude that the respondent remained enrolled in his course. She submitted that he was not undertaking full-time study in that course as is required by s541B(1)(a) and s541B(b)(i). She said that because he was not undertaking this full-time study he had no entitlement to youth allowance after 29 August 2004. However, she said that the SSAT’s finding that the respondent could resume qualification for youth allowance after having lost it on 30 August 2002 was incorrect.

17. Ms Dwyer submitted also that the respondent did not satisfy the requirement in s541B(1)(a)(ii) because he did not have the intention to re-enrol when re-enrolments were next accepted. She submitted that the respondent could have re-enrolled as early as 15 October 2002 but did not enrol until 10 March 2003. She submitted further that s541B(1)(b) is only intended to cover semester breaks for those persons who have been undertaking full-time study. The respondent was not undertaking full-time study by 30 August 2002 and she submitted that the Tribunal should follow the decision in Re Sands and Secretary, Department of Family and Community Services [2004] AATA 754 where the Tribunal said:

….after carefully examining both sections of the Act [the Tribunal] is of the opinion that they are applicable to students continuing with study, either in the same course or in another course but in both cases interrupted only by breaks between successive terms or semesters.

Ms Dwyer submitted that the Department’s policy of continuing to pay students over a vacation period should not be extended to the situation that applied in the respondent’s case where there were intervening university terms as well as vacation periods before he recommenced studies. 

18. In her statement of facts and contentions Ms Dwyer had initially asserted that the respondent’s statements on forms lodged with Centrelink between 28 August 2002 and 26 March 2003 that he was undertaking full-time study, were misleading and false and so s1237AAD should not be favourably applied. However, she said that on the respondent’s evidence at the hearing it was clear that he had an honest, if mistaken, belief that he was still in full-time study. As a result, she said the discretion for special circumstances could be considered by the Tribunal.

19.      Ms Dwyer submitted that it was open for the Tribunal to find on the evidence that the respondent lost his qualification for youth allowance at a date earlier than 30 August 2002. 

20.      The respondent submitted that the absence of any record of the time when he went to Centrelink and told them that he was dropping 2 subjects showed administrative error by Centrelink.  He said that the Centrelink officer should have told him then that he was no longer a full-time student.  He had carried out all requirements to keep them informed.  He said having told Centrelink once, there was no need for him to tell them again.  He said he never intended to mislead Centrelink by filling out the forms ticking that he was a full-time student.  He said that after he reduced his subject workload he was looking for work, and this satisfied Centrelink’s requirements for an alternative kind of payment under the Act. 

21.      The Tribunal reached its decision taking into account the oral and written evidence and submissions of the parties.  The Tribunal finds that the respondent was enrolled as a full-time student at the Central Queensland University in the autumn term in 2002 and continued his enrolment in the winter term in 2002.  The date when he changed his enrolment to only a 50% workload of subjects was unclear from the respondent’s evidence.  There was no documentary evidence that showed exactly when this occurred. 

22.      The respondent had a very poor recall of events.  The Tribunal takes into account that these events happened some time ago.  However, he could not recall any detail of the date, even approximately, when he withdrew from the subjects.  He could only suggest very generally when he thought he went to Centrelink.  He could not provide any detail of work efforts that he said he undertook in the second half of the year that year.  The Tribunal does not accept, in the absence of any supporting material recorded on the Centrelink computer system, his assertion that he went to Centrelink and told them that he had withdrawn from 2 subjects.  The Tribunal does not accept that in the second half of the year in 2002 that the respondent was making efforts to find employment.  He was asked by Centrelink in early 2003 to provide some evidence of this and he has had ample opportunity to provide that evidence, both to the SSAT and to this Tribunal, and he has not done so.

23. It is a requirement in s541B that a person is undertaking full-time study which is then defined in s541B(b)(iii) as three-quarters of the normal amount of full-time study for the course. When he reduced to half the full-time workload in his course the respondent no longer met that requirement and the Tribunal agrees with the finding of the SSAT that at that point in time he lost his qualification for youth allowance. The written materials point to that date being 30 August 2002 and the Tribunal so finds.

24. Section 1223 of the Act provides that a person will have a debt where they are not entitled to a payment, including where they were not qualified for it or it was not payable to them. This section allows the applicant and this Tribunal to look back retrospectively to events that have occurred in the past. The losing of qualification is a critical event in this matter. In the Tribunal’s view, after losing that qualification, the respondent could only become qualified again by lodging another claim. The various forms that he filled in after he lost his qualification, and in which he stated he was a full-time student when he was not, cannot operate as new claims. He needed to re-establish qualification and as he was not undertaking full time studies until March 2003, he cannot do so.

25.      The Tribunal accepts the applicant’s submission that Re Sands is a correct interpretation of the way s541B operates and that the Act contemplates a person being enrolled or re-enrolling when enrolments are next accepted but also requires that the person be undertaking three-quarters of the full-time study workload. Section 541B does not have the effect of allowing a person to be qualified for a payment simply by having an intention at some future time of enrolling in full-time study. Such an interpretation makes a nonsense of the very specific requirements concerning student workload reflected in s541B(1)(b)(iii) and (iv) and the provisions in 541B(1A) and 541B(2).

26.      For these reasons the Tribunal was satisfied that the respondent incurred a debt of youth allowance for the period originally raised by Centrelink, that is, 30 August 2002 to 12 March 2003 and reinstates that decision. 

27. On the question of whether the debt should be waived in whole or in part s1237AAD of the Act provides that a debt may be waived where special circumstances are established.  However, in order for the decision-maker to use this discretion, there must be something to make the case stand out from the usual or the ordinary (Groth v Secretary, Department of Social Security (1996) 40 ALD 541). In Re Beadle and Director‑General of Social Security (1984) 6 ALD 1 the Tribunal held that special circumstances must be unusual, uncommon or exceptional.  The Tribunal was satisfied that there were no special circumstances to disregard the debt in this case.  The Tribunal accepts that the respondent misunderstood his status as a student but his evidence to the Tribunal was that he is managing a limited rate of repayment of the debt and is not suffering financial hardship as that is understood in the context of this legislation. 

28.      The Tribunal took into account that the respondent asserted that he was looking for work in the second half of 2002.  The Tribunal has found that he was not.  Even if he had been there is no basis to now decide that he had an entitlement to another payment under the Act.  The Tribunal was not satisfied that the respondent was entitled to an alternative payment.  These payments have specific requirements and obligations and the Tribunal was not satisfied that he was carrying out a requirement of actively seeking work. 

29.      Having found that the respondent did not go to Centrelink to advise that he had reduced his study workload, there is no basis on which it could be said that this debt arose as a result of sole administrative error on the part of the Commonwealth:  s1237A of the Act.  The respondent contributed to the debt by failing to advise about the change in his studies and contributed to its continuing because he was filling out forms saying, however innocently or misguidedly, that he was a full-time student.

30.      The Tribunal sets aside the decision under review and substitutes the decision that the respondent has a debt of youth allowance for the period 30 August 2002 to 12 March 2003 in the sum of $5,278.71.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member

Signed:         Denise Burton
  Administrative Assistant

Date/s of Hearing  10 November 2004 (Rockhampton)
Date of Decision  12 November 2004 (Bundaberg)
For the Applicant  Ms J Dwyer, Departmental Advocate
The Respondent appeared in person