Sands and Secretary, Department of Family and Community Services
[2004] AATA 754
•19 July 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 754
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/382
GENERAL ADMINISTRATIVE DIVISION ) Re MICHAEL GRAHAM SANDS Applicant
And
SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
Respondent
DECISION
Tribunal Ms L Savage Davis, Member Date19 July 2004
PlacePerth
Decision The Administrative Appeals Tribunal sets aside the decision under review and substitutes the decision that the applicant has incurred a debt of youth allowance for the period 13 November 2002 to 11 June 2003, but the debt for the period 14 April 2003 to 11 June 2003 is waived pursuant to s 1237A(1) of the Social Security Act 1991. ............(sgd L Savage Davis)..............
Member
CATCHWORDS
SOCIAL SECURITY – YOUTH ALLOWANCE – whether undertaking full-time study – whether undertaking in study period for which enrolled, or intended to be enrolled– meaning of ‘next study period’ – failure to notify of changed circumstances – overpayment – recovery of debt – whether solely administrative error – whether special circumstances
Social Security Act 1991 ss 541B, 1237A, 1237AAD
Acts Interpretation Act 1901 s 15AA
Social Security (Administration) Act 1999
Coleman v Secretary, Department of Family and Community Services [2002] AATA 772
Zhang v Secretary, Department of Family and Community Services [2003] AATA 433
Jones v Dunkel (1959) 101 CLR 298
Dranichnikov v Centrelink [2003] FCAFC 133
Insurance Commissioner v Joyce [1948] 77 CLR 39
Commercial Properties Pty Ltd and Australian United Gold NL v Italo Nominees Pty Ltd [1988] unreported, FCt Sct of WA, 16 December 1988
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634
Williams and Secretary, Department of Family and Community Services [2003] AATA 726
Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190
Secretary, Department of Education, Employment, Training and Youth Affairs v Prince (1997) 50 ALD 186
REASONS FOR DECISION
19 July 2004 Ms L Savage Davis, Member
1. This is an application by Michael Andrew Sands (the applicant) for review of a decision made by a Centrelink delegate to the Department of Family and Community Services (the respondent ) on 7 July 2003, to raise and recover an overpayment of youth allowance of $5,287.48 for the period 13 November 2002 to 11 June 2003. This decision was subsequently affirmed by an Authorised Review Officer on 13 August 2003 and by the Social Security Appeals Tribunal (the SSAT) on 16 September 2003.
2. At the hearing the applicant was represented by Mr Tim Kavenagh of Corser & Corser, Barristers & Solicitors. Mr Chris Ward, a Centrelink advocate represented the respondent.
3. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). In addition the Tribunal had before it the following exhibits:
A1: Applicant’s Statement of Issues dated 21 November 2003;
A2: Letter (undated) from Dr Elena Tsvetnenko, Lecturer/Course Coordinator, Muresk Institute Curtin University;
A3: Applicant’s Statement of Facts and Contentions filed 8 March 2004;
A4: Suspension of Youth Allowance notice dated 14 April 2003;
A5: Information required for continuation of Youth Allowance form dated 27 October 2003;
R1:Letter from Mr Chris Ward, Centrelink Service Recovery Team to Mr Kavenagh, Corse & Corser, Barristers and Solicitors dated 23/12/2003;
R2: Secretary’s Statement of Facts and Contentions and attachments filed 30 March 2004;
R3: Explanatory Memorandum to the Social Security Legislation Amendment (Youth Allowance) Bill 1997.
LEGISLATION
The relevant sections of the Social Security Act 1991 (the Act) are:
“540 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 subsection 7 (7).
541(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) the person takes reasonable steps, throughout the period, to comply with the terms of a Youth Allowance Activity Agreement applying to the person; or
(d) the person takes reasonable steps to comply, throughout the period, with a requirement of the Secretary notified to the person under subsection (2).
541B (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
541B(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.”
Evidence by Mr Sands
4. Mr Sands told the Tribunal that he finished Year 12 at Northam High in 1998, subsequently studied at Albany and Fremantle TAFES and commenced a degree at Curtin University of Technology in 2001. He studied full-time in 2001 and 2002. Throughout this period he received youth allowance (YA) and at the end of each year received a form from Centrelink that he was required to complete and return. He did not study in semester 1, 2003 but returned to full-time study in semester 2, 2003 and completed his degree.
5. In semester 2, 2002, Mr Sands said he went into Centrelink, Victoria Park and spoke to a curly haired, non-Caucasian woman and handed in a form as requested. He could not remember what the form was for, or exactly when he took it in, but thought it would have been about August 2002. As he was about to leave he remembered that he would be not be studying in semester 1, 2003 as a result of exemptions gained from previous courses he had completed. Mr Sands said he asked this woman if he would still be entitled to YA and was told that she didn’t see any problems with his situation.
6. Mr Sands said in 2002 he didn’t receive the form he usually got towards the end of the year from Centrelink. He continued to receive YA after semester 2, 2002 ended. From that time he worked part-time while receiving YA and generally had to hand in a form fortnightly showing how much he was earning. Mr Sands said he did not complete fortnightly forms in 2003 but had to submit forms in regard to his parent’s income in March or April 2003. This was as a result of the suspension of his YA in April 2003 (Exhibit A4). Mr Sands said he had an appointment to hand in these forms and he saw a gentleman and discussed his parent’s circumstances. He also told him, as he had told the woman in August 2002, that due to exemptions he was not studying semester 1 2003. In June 2003 Mr Sands said he went to the Centrelink Office at Curtin and spoke to an officer called Alan. Alan was surprised Centrelink hadn’t picked up the problem before and said he shouldn’t let Centrelink get away with it.
7. Mr Sands said he studied full-time in semester 2 2003, completed his degree and received the form he had always received from Centrelink, except for 2002, requesting information about what he would be doing in 2004 (Exhibit A5). He did not complete the form as he had already notified Alan at Curtin Centrelink that he would finish studying at the end of 2003. His YA ceased at the end of 2003 and since that time he has been employed in 2 part-time jobs.
8. When cross-examined Mr Sands said that between November 2002 and the commencement of semester 2, 2003 he looked for work and worked part time in Coles supermarket between 10-25 hours at $14.80 an hour. Generally he thought he earnt about $200 per fortnight after tax. Mr Sands was unable to recall any particular amounts he earnt for any particular periods. He did not fill in any forms during semester 1, 2003, only forms about his parents’ income. He said he wasn’t required to hand in any forms because his income was consistent. Mr Sands said he did not think that it was unusual that he could work up to 25 hours a week, receive YA and not be required to inform Centrelink. Although he was at times working up to 25 hours per week he wasn’t declaring income because no forms were sent to him.
9. Mr Sands was referred to the document at T6/21, a computer generated copy of the text of a letter the respondent says was sent to Mr Sands in April 2003. Mr Sands said he read all the letters he received from Centrelink. Although it said he must notify Centrelink if he was not a full-time student he believed he had already told Centrelink he was no longer a full time student and so he had notified them. Mr Sands said he was unaware of activity tests.
10. Mr Sands was referred to the letter he had written to the Tribunal dated 26 September, 2003 (T1/1-3). Mr Sands accepted that in that letter he made no reference to the meeting at Centrelink, Victoria Park. He said he did however mention it to the SSAT and Alan. Mr Sands reiterated that he had told the man at the March/April 2003 interview that he was not studying. Mr Sands did not think it unusual that in every year except 2002 he received a form from Centrelink asking about his plans for the following year.
11. In response to questions from the Tribunal Mr Sands said the maximum he worked was 25 hours per week. He had not handed in forms to Centrelink declaring his income for some months coming up to the end of 2002 because he had been advised it was not necessary as it was a consistent amount. Mr Sands could not recall and had no details with him about the amount of income he earned between November 2002 and March 2003 but thought it was usually about $100 a week. He said he didn’t question why he continued to receive YA when he ceased to be a full-time student as he didn’t see what difference it made. He had told Centrelink in semester 2, 2002 that he would not be studying the next semester and understood he could receive YA and not study. He had also told Centrelink he would not be studying in semester 1, 2003 at the March/April 2003 interview in regards to parent’s income. He said his grandfather, a former Centrelink officer, had also advised him.
12. Mr Sands said he is currently employed for about 30 hours per week and receives about $480 per week after tax. He rents a flat and is not in financial difficulty.
Submissions for the Applicant
13. Mr Kavenagh referred the Tribunal to the applicant’s Statement of Facts and Contentions (Exhibit A3) and in addition made the following submissions.
. The Tribunal should accept the applicant’s evidence which was given freely and frankly. He submitted the applicant was not pressed in cross-examination.
. Following discussion with the respondent, Mr Kavenagh, on behalf of the applicant accepted that the debt commenced from 13 November 2002. Mr Kavenagh also on behalf of the applicant accepted that Mr Sands had been overpaid from 13 November 2002 until the commencement of semester 1, 2003, but submitted that the debt for that period should be waived.
. The applicant was entitled to receive YA from the commencement of semester 1, 2003 until 11 June 2003 because of the operation of s 541B (1) (a) (ii) of the Act. This was because the applicant intended to enrol in semester 2, 2003 and did enrol. The applicant also qualified under s 541B(1)(b)(ii) of the Act because he intended to undertake study in the “next study period”. That is on the first day of semester 1, 2003 he intended to undertake study in the “next study period”, that is semester 2, 2003. It was submitted, referring to Coleman v Secretary, Department of Family and Community Services [2002] AATA 772 and Zhang v Secretary, Department of Family and Community Services [2003] AATA 433 that the effect of s 541B(1)(b)(ii) of the Act is that a semester is a study period.
. The applicant also satisfied the requirement of s 541B(b)(iv) of the Act because he studied full-time in semester 2, 2003. Subsection 541B(1A) of the Act was then applicable because as was evidenced by Exhibit A2 the applicant was unable to undertake any study in semester 1, 2003. Therefore the applicant was qualified for YA under s 541B(1)(b) of the Act.
. The applicant satisfied s 541B(1)(c) of the Act because the applicant was undertaking an approved course. The words “since no longer being enrolled” in s 541B(1)(a)(ii) could be understood to mean that at the end of 2002 the applicant was not enrolled. Under normal circumstances he would re-enrol to study at the start of 2003, but he could not because subjects he needed to do to complete his studies were not available until semester 2, 2003.
. That any debt from 13 November 2002 to 11 June 2003 should be waived. The debt, it was submitted, had arisen solely due to administrative error on the part of the respondent as evidenced by the ODM Reconsideration that recorded as a ‘relevant fact’ that ‘Due to system fault payments continued beyond course end date’ (T16/56) (Dranichnikov v Centrelink [2003] FCAFC 133, per Hill at 62). An unfavourable inference should be drawn as a result of the failure of the respondent to call evidence to explain the system fault referred to and the Tribunal was referred to the decisions of Jones v Dunkel (1959) 101 CLR 298; Commercial Properties Pty Ltd and Australian United Gold NL v Italo Nominees Pty Ltd (unreported, FCt Sct of WA, 16 December 1988), Insurance Commissioner v Joyce (1948) 77 CLR 39. Alternatively if it was accepted that the applicant had advised the respondent that he would not be studying in semester 1, 2003 this was further evidence of administrative error that should result in the waiving of the debt. The applicant had advised he would not be studying in semester 1, 2003 at the March/April 2003 interview. In addition it was submitted that the applicant did not complete the form that was used to ascertain at the end of each year what a YA recipient would be undertaking in the following year. The failure to cancel his YA was evidence of administrative error as evidenced by the ODM Reconsideration that recorded ‘SYSTEM SHOULD HAVE CANCELLED PAYMENTS 22/11/2002, HOWEVER CUSTOMER MADE NO CONTACT UNTIL 21/3/03’(T16/56)
. That it was desirable to waive the entire debt under s 1237AAD of the Act. The Tribunal was referred to Re Beadle and the Director General of Social Security (1984) 6 ALD 1 which it was submitted did not stand for the proposition that special circumstances are those that are “unusual, uncommon or exceptional”. It was submitted that that there was an inference that all had to be satisfied. It was submitted that rather special circumstances exist where the circumstances can be distinguished from the usual case in the sense that they are out of the ordinary (Dranichnikov (supra)).The applicant’s circumstances were out of the ordinary such as to amount to special circumstances because he was unable to study in semester 1, 2003 due to credits; the respondent failed to send to the applicant the form normally sent to him and all other recipients of YA at the end of 2002 and because the respondent failed to terminate payments of YA as it should have and as the respondent conceded. (T16/56)
SUBMISSIONS FOR THE RESPONDENT
14. Mr Ward referred the Tribunal to Secretary’s Statement of Facts and Contentions (Exhibit R2) and made the additional oral submissions on behalf of the respondent;
. Section 15AA of the Acts Interpretation Act 1901 provides that in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act shall be preferred to a construction that would not promote that purpose or object. Section 15AB of the Acts Interpretation Act 1901 specifically refers to the relevance of Explanatory Memorandum (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 634). The Explanatory Memorandum to the Social Security Legislation Amendment (Youth Allowance) Bill 1997 (Exhibit R3) indicates that the real intent of s 541B of the Act is not to allow someone to remain eligible for YA over a period of some 7 or 8 months, but to allow YA to be paid during semester vacation periods that were usually November to February and June/July. This it was submitted was reflected in the guide to the Social Security law. Section 541B of the Act was intended to provide YA for students on vacation or moving between courses but not in the applicant’s circumstances where no study is undertaken for an entire semester. The Tribunal was referred to Williams and Secretary, Department of Family and Community Services [2003] AATA 726 in support of this proposition.
. No witness was called to explain the system fault it was submitted, because the respondent accepted that it occurred. It was submitted however that whilst this was evidence of administrative error it did not support the conclusion that the debt had arisen solely due to administrative error. This was because the applicant failed to respond to the notices of January and April 2003. The word ‘solely’ it was submitted required the error to be the sole cause of the overpayment as indicated by Nicholson J in Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190. In addition it was submitted that the applicant had ‘constructive notice’ on the basis that he had for a number of years received the end of year form to complete. There were no grounds it was submitted to waive the debt under s 1237AAD of the Act as there was nothing in the applicant’s situation that could be said to amount to “special circumstances”.
CONSIDERATION OF ISSUES
15. In reaching a decision the Tribunal took into account the written and oral evidence, the submissions, relevant legislation and case law. Following the hearing the Tribunal received a copy of the Curtin University of Technology 2003 Academic Calendar (approved by Academic Senate 3 May 2002). Based on this information the Tribunal finds that semester 1, 2003 commenced on 24 February 2003.
16. It was agreed between the parties that there was an overpayment of YA from 13 November 2002 until the commencement of semester 1, 2003. The Tribunal accepts that is correct and that there is a debt. The first issue to be considered then is whether YA was payable to the applicant from 24 February 2003 until 11 June 2003.
17. A person is qualified for YA in respect of a period if throughout the period the person satisfies the activity test (s 540 of the Act). A person will satisfy the activity test in respect of a period if the person is undertaking full-time study (s 541(1) (a) of the Act). The applicant claims to have satisfied the activity test in semester 1, 2003 as a person undertaking full-time study in accordance with the requirements of s 541B (1)(a)(ii) and s 541B(1)(b)(ii) of the Act.
18. To satisfy s 541B(1)(a)(ii) of the Act the applicant must show he “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 enrolments in the course are next accepted”. The applicant’s credits for prior study prevented him enrolling in any units semester 1, 2003. Dr Elena Tsvetnenko’s letter explains that study done previously by the applicant “…allowed Michael to complete all units offered in the first semester of each of the three years of his degree in just two years (2001 and 2002) which made it impossible for him to enrol in any unit in the first semester of 2003” (Exhibit A2). There is no evidence before the Tribunal however that re-enrolments in the course the applicant was taking were not being accepted for semester 1, 2003.
19. The Tribunal finds that the applicant was unable to satisfy the requirements of s 541B(1)(a)(ii) of the Act because he did not intend to re-enrol when re-enrolments in the course were next accepted, that is for semester 1, 2003 because it was “…impossible for him to enrol in any unit in the first semester of 2003” (Exhibit A2). The Tribunal does not accept that the words, “to re-enrol in the course when re-enrolments in the course are next accepted“ to mean at a time when a particular individual for whatever reason can be accepted into a course. Their meaning can only be understood in reference to when re-enrolment in a particular course is accepted, in this case for semester 1, 2003.
20. The Tribunal finds based on Exhibit R2, Attachment 1, that the applicant intended and had in fact re-enrolled on 26 November 2002 for semester 2, 2003. However this does not satisfy the requirement in s 541B(1)(a)(ii) of the Act that since no longer being enrolled in November 2002, he intended to re-enrol when re-enrolments in the course were next accepted. Enrolments in the course he was undertaking at Curtin were next accepted for semester 1, 2003.
21. Although it was not necessary to consider the submission in regard to s 541B(1)(b)(ii) having found that s 541B(1)(a)(ii) was not satisfied the Tribunal after carefully examining both sections of the Act 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. Section 541B outlines what is required for a person to be “undertaking full-time study” for the purposes of the Act and therefore to satisfy the activity test in s 541(1)(a) of the Act. This requires not only being enrolled or re-enrolling when re-enrolments in the course are next accepted, but also undertaking usually three quarters of the full-time study load and in some limited circumstances two-thirds of the full-time study load. The applicant did not satisfy s 541B(1A) because he was unable to undertake any study in semester 1, 2003. YA therefore was not payable to the applicant from 24 February 2003 to 11 June 2003 and a debt has been correctly raised by the respondent under s 1223(1) of the Act.
22. With respect to recovery of the debt for the entire period, that is 13 November 2002 to 11 June 2003 it has been submitted that it should be waived under sections 1237A or 1237AAD of the Act. Section 1237A(1) provides that;
1237A(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.
23. For a debt, or portion of a debt to be waived it must have arisen solely, that is exclusively, due to administrative error on the part of the Commonwealth. The respondent accepts they failed to cancel the applicant’s YA when he did not complete and return an “Information required for continuation of Youth Allowance “at the end of 2002. They submit however that the applicant failed to respond to notices sent in January 2002 and April 2003 that required him to notify amongst other things if he ceased full-time study (s 68 of the Social Security (Administration) Act 1999). The applicant did not deny receiving these letters but said he believed he had notified Centrelink in approximately August 2002 and in March/April 2003 that he was not studying in semester 1, 2003.
24. The applicant’s evidence was that on two occasions he asked Centrelink officers whether he could receive YA although he would not be studying. On the first occasion, August 2002 he recalled speaking to a woman who he was able to describe as curly haired and non Caucasian. It was only as he was about to leave he said he asked if would still be entitled to YA and said he was told “she didn’t see any problems with my situation”. Recipients of YA are required by s 68 of the Social Security (Administration) Act 1999 to respond to notices such as the notice of 31 January 2002. The Tribunal does not accept that the interaction in August 2002 amounts to informing Centrelink that he would not be studying in semester 1, 2003. His inquiry was only as he was leaving and the response that he received was not definite.
25. In March/April 2003 the applicant attended Centrelink and had a formal interview with a Centrelink officer following the suspension of his YA (Exhibit A4). YA has been suspended because Centrelink had not received documents requested. The Tribunal accepts that at this time, in a formal interview the applicant would have been requested to and did provide Centrelink with the information that he was not studying in semester 1, 2003 along with information about his parent’s income. Therefore the Tribunal finds that the debt from April 14 2003, did arise solely due to administrative error on the part of the Commonwealth.
26. As to whether the payments of YA from 14 April to 11 June 2003 were received in good faith as required by s 1237A, Secretary, Department of Education, Employment, Training and Youth Affairs v Prince (1997) 50 ALD 186 states that ‘…if a person knows or has reason to know that he or she is not entitled to a payment received…that person does not receive the payment in good faith. Absent such knowledge or reason to know, the receipt would be in good faith’ (p189). It is unusual that someone who received YA for a number of years and knew that he usually received a form at the end of each year to indicate what he would be doing the next year, could have as little knowledge as the applicant appeared to about why he was being paid YA. The Tribunal accepts however that the applicant believed he remained entitled to YA even though he was not studying and was working at times up to 25 hours per week. For these reasons the Tribunal waives that part of the debt for the period 14 April to 11 June 2003 under s 1237A of the Act.
27. In regard to the discretion to waive the debt on the basis of special circumstances, s 1237AAD provides:
“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 a false representation; or
(ii)failing or omitting to comply with a provision of this Act or the 1947 Act; and
(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) it is more appropriate to waive than to write off the debt or part of the debt.”
28. The special circumstances upon which the applicant relies include his inability to study in semester 1, 2003 due to credits; the respondents failure to send the usual form to him at the end of 2002 to ascertain what he would be doing in semester 1, 2003 and the failure, as conceded by the respondent to terminate his YA because this form was not completed. The applicant in his contentions submitted that the decision of Re Beadle and the Director General of Social Security (1984) 6 ALD 1 did not stand for the proposition that special circumstances are those that are unusual, uncommon or exceptional and that there was an inference that all had to be satisfied. Instead the Tribunal was urged to understand them as circumstances that can be distinguished from the usual case in the sense that it is out of the ordinary. Whilst it is not contentious to note that the phrase special circumstances defies precise definition, The Tribunal believes “unusual, uncommon or exceptional” are useful words to bear in mind when considering whether a persons circumstances could be said to be out of the ordinary. There is no reason to infer that the circumstances must be simultaneously unusual, uncommon, exceptional or out of the ordinary but all these words serve to help to identify the qualities that might distinguish a person’s circumstances as special. The applicant was unable to study in semester 1, 2003 because of credits for prior study he had undertaken. The applicant himself said he did not find it unusual that he did not receive the form he usually received at the end of 2002. Commonsense and experience indicates that this would not be the first occasion that a form from Centrelink has not been sent or, as the respondent has conceded they failed to cancel his YA as a result. The totality of the applicant’s circumstances cannot, the Tribunal finds, be described as either out of the ordinary, unusual, uncommon or exceptional so as to satisfy s 1237AAD of the Act.
29. The Administrative Appeals Tribunal sets aside the decision under review and substitutes the decision that the applicant has incurred a debt of youth allowance for the period 13 November 2002 to 11 June 2003, but the debt for the period 14 April 2003 to 11 June 2003 is waived pursuant to s 1237A (1) of the Social Security Act 1991.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Ms L Savage Davis, Member
Signed: .........(sgd V Wong)...................................
AssociateDate/s of Hearing 8 April 2004
Date of Decision 19 July 2004
Counsel for the Applicant Mr T Kavenagh
Solicitor for the Applicant Corser & Corser
Counsel for the Respondent Mr C Ward
Solicitor for the Respondent Service Recovery Team, Centrelink
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