Sines and Secretary, Department of Family and Community Services
[2004] AATA 683
•29 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 683
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2004/206
GENERAL ADMINISTRATIVE DIVISION
)
Re
AARON SINES
Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Ms N Isenberg, Member Date 29 June 2004
PlaceSydney
Decision The decision under review is set aside and in substitution thereof the Tribunal decides that:
(a) The debt was properly raised only in respect of the period from the cessation of the Applicant’s semester 2 2002 examinations until 20 March 2003. The matter is remitted to the Respondent for calculation of the debt for that period.
[Sgd] Ms N Isenberg, Member
CATCHWORDS
SOCIAL SECURITY – Austudy debt – whether Applicant undertaking study in relevant period – whether Applicant enrolled in course of study in relevant period – whether Applicant entitled to Austudy after end of second semester – definition of enrolment – whether Applicant intended to re-enrol –whether special circumstances exist – whether debt should be waived – decision set aside
LEGISLATION
Social Security Act 1991 ss 541, 541(B), 568, 1237A, 1237AAD
CASE LAW
Re Okely and SDETYA (1999) AAR 445
Twigg and Secretary Department of Family and Community Services [2002] AATA 1135
Re Beadle and Director General of Social Security (1984) 6 ALD 1
REASONS FOR DECISION
29 June 2004 Ms N Isenberg, Member DECISION UNDER REVIEW
1. The decision under review before the Administrative Appeals Tribunals (“the Tribunal") was the decision of the Social Security Appeals Tribunal (“SSAT”) on 3 February 2004 (T2) which affirmed the decision of the Authorised Review Officer (“ARO”) on 26 November 2003 (T19) and the Respondent, the Secretary, Department of Family and Community Services ("Centrelink") dated 20 November 2003 (T16) to raise and recover, from Mr Aaron Sines, an Austudy debt of $2891.63 for the period 22 July 2002 to 20 March 2003.
BACKGROUND
2. Mr Sines attended Southern Cross University (‘the University’), Lismore campus in 2001 and 2002. He was in receipt of Austudy during that period.
3. On 6 June 2003, the University advised Centrelink that Mr Sines’ 2002 enrolment was cancelled with effect from 28 March 2002 (T7/22).
4. On 7 June 2003, Centrelink calculated that Mr Sines had been overpaid Austudy in the amount of $5,901.35 for the period 29 March 2002 to 20 March 2003 (T8/24).
5. On 14 November 2003 the University advised Centrelink that Mr Sines’ enrolment in semester 1, 2002 had been reinstated (T15/33). Centrelink then recalculated Mr Sines' debt for the period 22 July 2002 to 20 March 2003 and varied the debt amount to $2891.63. Centrelink raised this debt on the basis that Mr Sines was not enrolled at the University in semester 2, 2002 or semester 1, 2003 (T16/35).
ISSUE BEFORE THE TRIBUNAL
6. The issues before the Tribunal are:
(a)whether Mr Sines owes a debt to the Commonwealth and; if so
(b)whether there is any reason why the whole or a part of the debt should be not be recovered.
LEGISLATION
7. The relevant legislation, the Social Security Act 1991 (“the Act”), so far as is relevant, provides as follows:
“568. Subject to this Subdivision, a person is qualified for an Austudy payment in respect of a period if, throughout the period:
(a) the person satisfies the activity test (see Subdivision B); and
…”
8. In order to satisfy the activity test, a person in Mr Sines' circumstances must satisfy section 541(1) of the Act, which states in part:
“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
…”
9. A person is considered to be undertaking full-time study if, among other things, the person is enrolled, as required by section 541B, which states in part:
“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
…
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
…”
THE HEARING
10. A hearing was held before the Tribunal on 8 June 2004 at which Mr Sines was self-represented, and Centrelink was represented by James Larcombe, an advocate from the Centrelink Service Recovery Team.
11. I had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which I took into evidence.
12. Mr Sines gave evidence and was cross-examined on behalf of Centrelink. I also put questions to him.
CONSIDERATION OF EVIDENCE AND FINDINGS
13. In coming to the correct and preferable decision, I took into account all the evidence, submissions, case law and relevant legislation.
14. The test set out in section 541B of the Act is twofold. Firstly section 541B requires that a student is enrolled in a course of education. The second requirement is that a student be undertaking study.
15. I examined the second of these issues first.
Was Mr Sines undertaking study in semester 2 2002?
16. In 2001 Mr Sines commenced studying contemporary music at the University. Presumably he satisfactorily completed the first year.
17. Mr Sines told me that in semester 1, 2002 he attended all necessary classes, completed all assignments and successfully passed all examinations. This is confirmed, largely, by the student history report dated 14 November 2003 (T15/34).
18. In semester 2 he said he also attended all necessary classes, completed all assignments and successfully passed his examinations. Some evidence was available from Michael Deacon, the Head of Music Production (T20/54) and Associate Professor Jon Fitzgerald (T20/55), to the effect that Mr Sines had achieved a pass in one subject and a credit in another.
19. Centrelink did not dispute that Mr Sines may have been undertaking study during the relevant period and I find that he was undertaking study in accordance with section 541B(1)(b) of the Act.
Was Mr Sines enrolled in a course of education for semester 2 2002?
20. Centrelink contended that Mr Sines was not undertaking full time study pursuant to section 541B, as he was not ‘enrolled’ in a course of education at the University for semester 2 of 2002 (T7/22). Therefore he could not have satisfied the ‘activity test’ described in section 541(1), irrespective of whether he was ‘undertaking study’. Accordingly he was said not to be qualified for Austudy payment pursuant to section 568(a).
21. Mr Sines told me that at the commencement of his second year in the Contemporary Music Course, in early 2002, he selected full year subjects or subjects that progressed to the next level in the second semester, if successfully completed in the first semester. There was therefore no need to ‘re-enrol’ for semester 2, as it was really just a continuation of semester 1.
22. At that time he was in difficult financial circumstances. In support of that contention he told me that he had taken out a student loan through the Commonwealth bank, which entailed some sacrifice of Austudy in return for a low–interest loan.
23. He could not pay his student union fees of about $390. On enquiring as to how the union fees were to be applied he was told that 70% of the fees financed alcohol for the students and the balance provided student amenities such as counselling and dental services. He enquired about paying only that portion that related to ‘real student services’. He said he was told that if he didn’t pay the whole amount he would be put ‘on sanctions’ which he understood to mean restricted access to the University pub and other facilities, limited library and internet rights and that his results would be withheld until he paid the union fees. Otherwise he was fully participating in campus life.
24. In August 2002 when the University apparently ascertained that Mr Sines had not paid his union fees it ‘cancelled’ his enrolment with effect from 25 February 2002, the first day of semester 1 2002 (T11/29). There was no evidence that the University informed Mr Sines of that decision.
25. That he did not receive a HECS notification for semester 2 did not trouble Mr Sines because he knew that he had enrolled at the beginning of the year and that his HECS debt would continue to accrue ‘automatically’ and would ultimately be collected from him when his earnings reached the repayment threshold. It was also of no concern to him that he did not receive notification of his results. He understood the withholding of results to be part of the ‘sanctions’ for not paying the union fees.
26. The first he knew of the ramifications of not paying the union fees was on 7 June 2003, that is, nearly 18 months after his return to university for his second year. On that date he received a notice of overpayment from Centrelink (T8/24), demanding payment within a month. He was informed that as he ‘ceased studies’ on 28 March 2002 he was not entitled to Austudy from that date and that as a result he had incurred a debt of $5901.35.
27. Shortly after that letter he made enquiries of Centrelink and ascertained that it was the non payment of his ’fees’ that had caused the ‘cancellation’ of his enrolment (T9/27). He urgently contacted the University Enrolments and Fees Manager. He told me he offered to pay the full amount but was told that the University would accept only so much of the union fees as would relate to semester 1, that is, half the amount. Once that was done and his semester 1 enrolment was ‘updated’ then the University could deal with semester 2.
28. When he attempted to pay the balance he was informed that the University was not prepared to accept the union fees. Mr Sines believed it had ‘all got too hard’ for the University. He thought it outrageous that an organisation that ‘sells beer’ should have control over the University as a learning institution.
29. On 10 November 2003, Centrelink was informed that the Director of Student Services had agreed to ‘back-enrol’ Mr Sines in respect of semester 1 but had ‘not recognised’ Mr Sines’ enrolment for semester 2 in 2002 (T13/31). As a result Centrelink adjusted the alleged debt (to $2891.36) to reflect ‘enrolment’ (and hence entitlement to Austudy) in respect of semester 1 only. After the hearing Centrelink confirmed that the debt which has been raised refers only to Austudy payments made to Mr Sines and is quite independent of any arrangements of any debt he may owe to the Commonwealth Bank in respect of his student loan.
30. I discussed with the parties what might be meant by ‘enrolment’ in section 541B. Mr Larcombe submitted that as it was not defined in the legislation it should be given its ordinary dictionary meaning.
31. The Oxford English Dictionary defines ‘enrol’ as follows:
“To write (a name), inscribe the name of (a person) on a roll, list, or register; to make a list of”
32. The Macquarie Dictionary defines ‘enrol’ as:
“to write (a name) or insert the name of (a person) in a roll or register; place upon a list. 2. to enlist (oneself).”
33. I also raised with the parties whether in ‘cancelling’ the enrolment (per T11/29), the University acknowledged that Mr Sines had in fact been ‘enrolled’. Centrelink’s position was that it appeared that, in the University’s view, ‘enrolment’ was conditional upon payment of union fees. Mr Sines stressed that at no time had he been malicious or devious; he had merely sought a way of delaying a payment he was being asked to make until he was in a better financial position. He had no idea that the University would ‘dis-enrol’ him. Apparently, had he returned to University in 2003, he would have been refused enrolment until the 2002 union fees were paid. His evidence was that he would have done so at that time.
34. There was no evidence that when he enrolled at the commencement of semester 1, 2002 the enrolment was conditional upon payment of the union fees. Further, although Mr Sines understood that his access to certain amenities may have been restricted, there was no evidence from the University that this was enforced. In fact the evidence was that he fully participated in University life, in particular, in submitting assignments and sitting for examinations. The only ‘sanction’ of which there was evidence was that Mr Sines did not receive his results for semester 1 at the usual time. There was no evidence that the University informed Mr Sines that payment of union fees was a condition of enrolment, nor that he was in fact ‘sanctioned’ for failure to pay the union fees. However, the University accepted his assignments and permitted him to sit for examinations at the end of semester 2, that is after the University purported to have ‘cancelled’ his enrolment.
35. This case differs from that of Twigg and Secretary, Department of Family and Community Services [2002] AATA 1135 where the applicant was found not to be enrolled in first semester as his enrolment form contained a notation that his enrolment was not to be processed due to outstanding loans.
36. I also accept Mr Sines’ evidence that he was not required to ’re-enrol’ for semester 2 and that he just resumed classes after a short break. He continued to attend classes and the University continued to accept his assignments and he sat for the final examinations.
37. In Re Okely and Secretary, Department of Education Training and Youth Affairs [1999] AATA 429, the Tribunal took a broad view of the meaning of ‘enrol’ in the equivalent provision in the Student Assistance Act 1973:
“27. As regards the requirement that the applicant have been “enrolled” as a student of a secondary school …, the Tribunal is of opinion that the word “enrolled” should be interpreted flexibly having regard to the nature of the relevant school.”
38. I accept that Mr Sines attended the University at the commencement of the 2002 academic year and nominated his courses for the year. Applying the ordinary dictionary meaning, and adopting the flexibility suggested by Okely (supra) I find that in doing so he ‘enrolled’.
39. I do not accept that the enrolment was conditional upon payment of the union fees.
Was Mr Sines entitled to Austudy beyond the end of semester 2, 2002?
40. Having accepted that in semester 2 Mr Sines was enrolled in a course of study and was undertaking study in accordance with section 541(a)(i) and (b)(i) I now turn to the period after the cessation of Mr Sines studies.
41. Sub-paragraph 541B(1)(a)(ii) of the Act relates to students continuing with study, without taking a break from study apart from the interim between periods of study. For these continuing students, the enrolment requirement is that of having an intention to enrol when enrolments in the course are next accepted. In that way, they meet the requirement of paragraph (a) without actually being enrolled and this allows them, provided the other requirements of the provision are met, to continue to receive Austudy between academic years.
42. Mr Sines told me that at the end of semester 2, 2002 he returned to Sydney with the intention of getting a job and if he could not, he would return to university for the third year of the course. He obtained some unpaid work experience in February 2003 for about four weeks with Foxtel and hoped this would eventuate into a job, but it did not.
43. Although no job was immediately forthcoming he decided not to return to University. He did not have a very high opinion of some of the lecturers who were ‘musos first, lecturers second’. He said he advised the University as soon as he decided that he was not going to return. For about two - three months he went onto unemployment benefits while he looked for work in any field that might utilise his skills in audio technology.
44. From his evidence I do not accept that Mr Sines ‘always intended to re-enrol’ in the course when re-enrolments were next accepted, as required by s541B(1)(a)(ii).
45. I therefore find that he had no entitlement to Austudy beyond the cessation of his examinations in semester 2, 2002 until those payments were ceased on 20 March 2003.
46. The Act provides that, in limited circumstances, recovery of a debt may be waived:
“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.
1237A.(1A) Subsection (1) 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;
which ever is the later.”
47. If a debt or part of a debt arises due to the sole administrative error of Centrelink, that debt can be waived under section 1237A(1) of the Act. In this matter, section 1237A(1) clearly does not apply as there is no evidence of administrative error on behalf or Centrelink.
“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.”
48. The term “special circumstances” is not specifically defined in the Act, but there have been numerous decisions on this issue handed down by this Tribunal and the Federal Court. For example in the decision of Re Beadle and Director General of Social Security (1984) 6 ALD 1, the principle has emerged that in order for circumstances to be considered ‘special’ they must be unusual, exceptional or uncommon, so as to make the person’s circumstances markedly different from those of others in receipt of income support payments. A person’s circumstances do not need to be unique, but must have that particular degree of unusualness, so as to permit them to be described as ‘special’.
49. Centrelink contended that Mr Sines’ circumstances are not markedly different from those of others in receipt of income support payments.
50. Mr Sines told me that he is building a small business and has borrowed money from his father to finance the purchase of some equipment. Work is sporadic and, in addition to his student loan debt and any Centrelink debt, he owes about $2-3000 on his credit card. He has no dependants and is in good health.
51. I find that there are no circumstances in this case which can be classified as unusual, exceptional or uncommon. Mr Sines gave evidence of straitened financial circumstances. However, such circumstances are common of those receiving social security benefits. Therefore, I find that there are no special circumstances and the debt cannot be waived on this basis.
52. In coming to this view however I observe that Mr Sines had said that, having wasted a semester at university (because he has received no academic credits for that time), he would have been ‘better off’ going on unemployment benefits and these would have continued beyond the end of the academic year. The advocate for Centrelink conceded that in fact unemployment benefits and the consequent rental assistance would have exceeded the Austudy payments in the relevant period.
DECISION
53. The Tribunal therefore sets aside the decision of the Respondent, the Secretary, Department of Family and Community Services to raise and recover a debt in respect of the period 22 July 2002 until 20 March 2003 and substitutes its decision that there was a debt properly raised only in respect of the period from the cessation of the Applicant’s semester 2 2002 examinations until 20 March 2003. The matter is remitted to the Respondent for calculation of the debt for that period.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member
Signed: A. Krilis
AssociateDate of Decision 29 June 2004
Representative for the Applicant Self-represented
Advocate for the Respondent Mr James Larcombe
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