Shuttleworth and Secretary, Department of Education, Science and Training
[2006] AATA 1045
•5 December 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1045
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2006/161
GENERAL ADMINISTRATIVE DIVISION ) Re PENNY SHUTTLEWORTH Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, SCIENCE AND TRAINING
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member Date5 December 2006
PlaceMargaret River, Western Australia
Decision The decision under review is affirmed.
..............................................
Ms G Ettinger
Senior Member
CATCHWORDS
Austudy – incorrect information on application form leading to payment of benefit for which the Applicant was not eligible – Applicant not engaged in fulltime study pursuant to the legislation – debt being recovered – no waiver - no special circumstances – decision under review affirmed.
Social Security Act 1991 ss 568, 569(1), 569C(a), 1223(1), 1236(1A), 1237A(1), 1237AAD
Ferrier and SDFaCS (2002) 71 ALD 526
Re Beadle and Director General of Social Security (1984) 6 ALD 1
Secretary, Department of Education, Employment, Training and Youth Affairs v Prince (1998) 152 ALR 127REASONS FOR DECISION
5 December 2006 Ms G Ettinger, Senior Member 1. Ms Penny Shuttleworth is a 31 year old student who relies on either Austudy payments or Newstart for her income. She suffers anxiety and depression from time to time, the documents before me indicating that she suffered depression back in 2004, and that she is currently under treatment for the condition by a medical practitioner in Margaret River.
2. Ms Shuttleworth has appealed the raising of an Austudy debt by the Secretary, Department of Education, Science and Training, the Respondent in these proceedings in relation to Semester 2, 2004. Notwithstanding having applied for, and received Austudy previously, and being supplied with the relevant written information on enrolment, Ms Shuttleworth maintains that she inquired of Centrelink and the administrations of the tertiary institutions where she was enrolled, and did not receive correct information about the courses. She says, in particular, because that is what has given rise to this appeal, that she did not know she could not aggregate the courses she was taking at two different institutions at which she was enrolled in Semester 2, 2004. In support of the argument she expected to be able to aggregate the points to make up full time study, Ms Shuttleworth says both courses were held at the Margaret River campus, even in the same room, one being Bachelor of Arts at Curtin University of Technology, and the other at TAFEWA, Southwest Regional.
3. The Respondent and the Social Security Appeals Tribunal (“the SSAT”) found that Ms Shuttleworth owed a debt to the Commonwealth for overpayment of Austudy for Semester 2, 2004. Later on, in Semester 1, 2005, Ms Shuttleworth was for Austudy purposes, a full time student, and was paid Austudy.
4. I was satisfied from the evidence before me that the decision of the Social Security Appeals Tribunal was correct and should be affirmed. My reasons follow.
ISSUES BEFORE THE TRIBUNAL
5. The issues to be decided here are:
· Whether Ms Shuttleworth was undertaking qualifying study at the relevant time; if not
· Whether she was overpaid Austudy, and accordingly has a debt to the Commonwealth between 9 August 2004 and 27 February 2005 or 9 August 2004 and 26 November 2004; if so,
· Whether that debt can be waived or written off in full or in part.
THE RELEVANT LEGISLATION
6. The relevant legislation is the Social Security Act 1991 (“the Act”).
WHETHER MS SHUTTLEWORTH WAS UNDERTAKING QUALIFYING STUDY AT THE RELEVANT TIME, AND IF NOT, WHETHER SHE WAS OVERPAID AUSTUDY, AND ACCORDINGLY HAS A DEBT TO THE COMMONWEALTH
7. Section 568 of the Act provides that a person satisfies the activity test for a particular period if she is of Austudy age, an Australian citizen and is undertaking qualifying study. The first two are not in doubt in this case. However, I have to decide if Ms Shuttleworth was undertaking qualifying study in Semester 2, 2004.
8. Qualifying study is dealt with in section 569A of the Act. As relevant the section follows:
Undertaking qualifying study
For the purposes of this Part, a person is undertaking qualifying 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 course in which the person is enrolled, or intends to enrol, is an approved course of education or study (see section 569B); and
(c) the person is a full‑time student or a concessional study‑load student in respect of that course (see sections 569C and 569D); and
(d) the person satisfies the progress rules (see sections 569G and 569H).
9. To qualify as a full time student, and therefore qualify for Austudy, Ms Shuttleworth had to be enrolled in, and undertaking study of at least 75% of the full time study load, which amounts to a minimum of 75 credit points. That is covered in section 569C which follows as relevant.
Full-time students
For the purposes of this Subdivision, a person is a full‑time student in respect of a course if:
(a) in the case of a person who is enrolled in the course for a particular study period (such as, for example, a semester)--the person is undertaking at least three quarters of the normal amount of full‑time study in respect of the course for that period; or
(b) in the case of a person who intends to enrol in the course for a particular study period--the person intends to undertake at least three quarters of the normal amount of full‑time study in respect of the course for that period.
Note: For normal amount of full‑time study see section 569E.
10. Ms Shuttleworth’s course at TAFEWA amounted to 50 credit points or 50% of a full time load and her course at Curtin University counted as 25 credit points or 25% of the full load.
11. I noted from the documents before me that Ms Shuttleworth was enrolled in two courses of study in Semester 2, 2004 which is the relevant time in this matter. She was attending the Margaret River campus enrolled in a Bachelor of Arts at Curtin University of Technology, and jewelry and water colour courses at TAFEWA. I accept they were conducted on the same campus, and indeed in the same room. In her application for Austudy (T11), made after Centrelink had sent her various publications relating to the Austudy payment (T4 – T8), which included correspondence, and a publication all about Austudy, Ms Shuttleworth answered in Part D of the form that she was studying full time both in Semester 1 and 2 of 2004/ She indicated that she was doing formal course work for 30 – 40 hours. She did not list a second educational institution in the space provided, that is TAFEWA, where she was doing her jewelry course. In her oral evidence, Ms Shuttleworth explained said that she had made a mistake on the form.
12. Ms Shuttleworth was notified by Centrelink on 11 August 2004 (T15), that Austudy payments would be made from 9 August 2004 if she was studying full time, and informed her in that letter, and subsequent ones which are in the T-documents, that she had to inform Centrelink if her study load changed in any way, and warned that if an overpayment was to be created because she had not given Centrelink the correct information, she would have to repay certain moneys.
13. In her oral evidence Ms Shuttleworth complained that she had contacted Centrelink and the administrations of the educational institutions in which she was enrolled, several times, to inquire about her eligibility for Austudy, and that they had been unable to give her the correct information. She said that she had been under the impression that her enrolment at two different institutions could be aggregated to make up her requirement to be doing full time study. She emphasised that the courses were conducted in the same location, and indeed in the same room.
14. Ms Shuttleworth told me at the hearing that she had made inquiries about obtaining tape recordings of her conversations with Centrelink in order to prove that she had made the appropriate inquiries. She said that she had been unsuccessful in doing so. I asked Mr Holt to make inquiries about whether such tapes existed, and if so whether they were available. He made inquiries, and we were informed that the customer service centres at which Ms Shuttleworth made her inquiries did not record conversations. I accepted Ms Shuttleworth had been in touch with Centrelink, and noted that there were indeed file notes of conversations she had had with Centrelink officers, in particular at T66. I accepted Ms Shuttleworth had made certain inquiries, but I relied on the fact she was an experienced tertiary student, aged 30 years in 2004, and that she had been supplied ample written information and a booklet about Austudy when she made her application.
15. I noted that it was through a Centrelink review procedure in December 2005 that Centrelink discovered that Ms Shuttleworth’s study load was not sufficient to qualify her for Austudy payment, and a decision was made on 15 December 2005 that she had been overpaid from 9 August 2004 to 29 June 2005. This was reviewed on 28 February 2005 to date from 9 August 2004 to 26 November 2004, (T28).
16. Because the courses could not be aggregated, I am satisfied she was studying less than full time study at the relevant time, and was accordingly not eligible for Austudy.
17. In that regard I was mindful of the case of Ferrier and SDFaCS (2002) 71 ALD 526 where Senior Member Bullock stated:
While seemingly logical to combine two courses because in Ms Ferrier's submission they are related, the Tribunal finds that even if they are related, there is no formal recognition by the institution that this is the case. It is true that the legislation does not explicitly deal with the issue raised by Ms Ferrier's circumstances and nor is it dealt with in the Guide. The Tribunal does note that there is reference in the Guide to study in two institutions. While not binding, the Guide is instructive. The Guide noted that in relation to study in two separate institutions, there must be study of at least 75 per cent of the full-time study-load in at least one course and the other courses counted only if the subjects in the other course are recorded on the enrolment for the approved course or evidence must be provided that the subject will be counted towards the approved course. Ms Ferrier has no such evidence from the institution in relation to such matters in terms of both courses constituting full-time study for the purpose of either the Horticulture course or the Business course. While Ms Ferrier submits that the unrelated subjects could be added together, there is no formal recognition by the institution for either course that this is possible or that it could constitute full-time study.
Given the Tribunal's understanding of Ms Ferrier's evidence, the submissions, the legislation, the Explanatory Memorandum and the policy considerations in the Austudy and Social Security Guides, the Tribunal finds that Ms Ferrier does not satisfy the Activity Test as she was not undertaking qualifying study as a full-time student, nor undertaking the normal requirements of full-time study.
18. I have noted Senior Member Bullock’s findings as to the aggregation of courses, and have noted that Ms Shuttleworth has encountered a similar situation. I am satisfied that aggregation of courses can only take place where formal recognition is made by the educational institutions involved, and that this was not the case in Ms Shuttleworth’s situation.
19. I noted also from the legislation that there is provision for students who suffer either a physical, psychiatric or intellectual condition as certified by an appropriate medical practitioner, to do less than a full time load and still be eligible for Austudy. However, I find from the evidence before me that there were no medical reports in that regard at the relevant time, and find that that provision does not apply to Ms Shuttleworth. I did note that Dr Milligan, her general practitioner wrote on 7 November 2006 (Exhibit A1), that Ms Shuttleworth presented with a “depressed and anxious mood” in March 2006 with regard to a debt to the Commonwealth, and that he had commenced antidepressant medication. The Applicant told me that because of what had occurred, she suffered anxiety and depression, lost motivation to study, and had ceased her studies in 2006. Whilst I can understand Ms Shuttleworth’s disappointment, it does not unfortunately impact upon the calculation of the debt.
20. The SSAT subsequently held that the date of the debt should be extended to 27 February 2005 because the Respondent had misapplied section 569A(a)(iii) of the Act, which would only apply if Ms Shuttleworth was a full time student in Semester 2, 2004, and intending to enrol as a full time student in Semester 1, 2005.
21. I have reproduced section 569A(a)(iii) below:
Undertaking qualifying study
For the purposes of this Part, a person is undertaking qualifying study if:
(a) the person:
(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
22. The SSAT held that as Ms Shuttleworth was not enrolled as a full time student in Semester 2, 2004, she was not undertaking qualifying study until such time as she did enrol as a full time student, that is from the beginning of Semester 1, 2005. I agree with the reasoning of the SSAT in that regard.
23. Accordingly I am satisfied that Ms Shuttleworth incurred a debt pursuant to section 1223(1) of the Act to the Commonwealth for overpayment of Austudy for Semester 2, 2004 because she could not be held to be studying full time pursuant to the legislation. Section 1223(1) of the Act provides as follows:
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.
24. A debt to the Commonwealth was incurred when Ms Shuttleworth obtained the benefit of a social security payment, Austudy in this case, in circumstances where she was not entitled to it, that is in Semester 2, 2004.
25. I am also satisfied that because Ms Shuttleworth was not studying full time in Semester 2, 2004, she could not have had the intention pursuant to the legislation for full time study in Semester 1, 2005 (even though she eventually did).
26. The debt period is then as the SSAT found, that is 9 August 2004 to 27 February 2005. That debt must be recovered unless there are “special circumstances” in order to reduce or waive that amount.
WHETHER THE DEBT CAN BE WAIVED OR WRITTEN OFF IN FULL OR IN PART
27. I have found in the paragraphs above that Ms Shuttleworth was not a full time student pursuant to the legislation, and therefore not eligible for Austudy in Semester 2, 2004. She obtained the benefit of the payment and that amount is therefore a debt due to the Commonwealth and must be recovered unless there are circumstances justifying waiver or write off.
28. Write-off may occur if certain circumstances exist. Section 1236(1) of the Act deals with write off, and follows as relevant.
Write off
1236(1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
1236(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or(c) the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d) it is not cost effective for the Commonwealth to take action to recover the debt.
29. I have considered the requirements of this section of the Act, and am satisfied that it has no application in Ms Shuttleworth’s case. Her debt is being recovered at the rate of $57.56 per pay period (T66). The debt is clearly not irrecoverable at law, the debtor’s whereabouts are known, and whilst it cannot be easy financially for Ms Shuttleworth, she is repaying it.
30. I then moved to consider administrative error. Section 1237A deals with that situation, and follows as relevant. I have noted that in order for the section to apply, the error must be sole administrative error of the Commonwealth.
Administrative error
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.
Note: Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).
31. Ms Shuttleworth argued that it was the Commonwealth’s administrative error which caused the overpayment, and that she was either unable to obtain the correct or indeed any information relevant to her case. I accepted that Ms Shuttleworth made inquiries of both the tertiary institutions where she enrolled, and Centrelink, regarding her eligibility for Austudy. However she filled in her Austudy application form (T11), and agreed she gave incorrect information in that form, in which she stated that she was a full time student at Curtin University, at a time when she was not. That means that any error which occurred as a result could not qualify for sole administrative error of the Commonwealth. In any case, even if the educational institutions gave Ms Shuttleworth incorrect information, the educational institutions are not the Commonwealth.
32. I have noted that there is case law where the receipt of moneys in good faith has been considered (Secretary, Department of Education, Employment, Training and Youth Affairs v Prince (1998) 152 ALR 127). Ms Shuttleworth may not have have received the Austudy payments in Semester 2, 2004 in good faith if she turned a blind eye to the fact she may not have been eligible for it. I am satisfied from the documents before me that Centrelink sent correspondence to her on several occasions with regard to the payment.
33. In particular, the Act stipulates that waiver of a debt cannot occur where a debt has arisen partly due to error by the Commonwealth. As Ms Shuttleworth has admitted that she gave incorrect information on the application form, she is responsible for that error and waiver due to administrative error cannot apply in her case.
34. I am satisfied administrative error of the Commonwealth does not apply, and Ms Shuttleworth cannot get relief in the application of section 1237A of the Act.
35. That leaves the possibility of the application of section 1237AAD which follows as relevant. That subsection states that waiver of the whole or part of the debt is possible if the debt did not arise in whole or in part because the person knowingly made a false statement or representation, and there are “special circumstances”, other than financial hardship alone in order for the decision maker to exercise the discretion in the Applicant’s favour. Section 1237AAD follows as relevant.
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 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.
36. I noted that although the SSAT found that Ms Shuttleworth knowingly misrepresented her circumstances, the Respondent did not press that argument. I accepted that, and accordingly have explored the possibility of applying section 1237AAD.
37. I was mindful Mr Holt argued that there were no “special circumstances” warranting the exercise of the discretion to find “special circumstances” in Ms Shuttleworth’s case. He argued that Ms Shuttleworth’s circumstances were not so uncommon, unusual or exceptional that it would desirable to either waive the debt in whole or in part.
38. The term "special circumstances" has been examined by the Courts and Tribunals in many decisions and in different contexts. In Re Beadle and Director-General of Social Security (1984) 6 ALD 1 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 on 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.
39. I considered Ms Shuttleworth’s evidence regarding her financial circumstances. She told me that she has learned to manage on very little, that she can eat and can pay the rent, and that she lives on a tight budget. I noted that her debt is being recovered from her Centrelink payments. She told me that she had some problems with regard to marks, and complained to the Ombudsman. Ms Shuttleworth gave evidence about her anxiety, and tendered a letter dated 7 November 2006 from her doctor. He said that she had been a patient of his for the last few years, and that in March 2006, she presented with a “depressed and anxious mood related to the issue of a large amount of money she was expected to pay back to Centrelink”. He said that he commenced her on antidepressant medication. I noted that Ms Shuttleworth submitted a doctor’s certificate to Centrelink for the period 13 July 2004 to 12 August 2004 in which the diagnosis was given as anxiety, so I was satisfied that the anxiety in 2006 was not the first occasion when Ms Shuttleworth had suffered the condition (T66/307). I did not accept incorrect information as a special circumstance, and when considering Ms Shuttleworth’s situation globally, could not be satisfied that “special circumstances” applied in her case to waive the debt either in part or in full.
40. Accordingly the debt must be recovered in full and the decision under review affirmed.
DECISION
41. The decision under review is affirmed.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member
Signed: ..........[Sgd S da Motta]...............................
AssociateDate/s of Hearing 10 November 2006
Date of Decision 5 December 2006
The Applicant Self Represented
Advocate for the Respondent Mr A Holt
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