Singh and Secretary, Department of Social Services (Social services second review)

[2023] AATA 4752

Singh and Secretary, Department of Social Services (Social services second review) [2023] AATA 4752 (25 October 2023)

Division:GENERAL DIVISION

File Number(s):      2023/2118

Re:Navneet Singh

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:25 October 2023

Place:Sydney

The decision under review is affirmed.

.............................[SGD]...........................................

Senior Member A Poljak

CATCHWORDS

SOCIAL SECURITY – Austudy Debt – overpayment – not studying full time – insufficient study workload – whether recovery of debt should be written off or waived – where no administrative error – where no special circumstances – decision under review affirmed

LEGISLATION

Social Security Act 1991(Cth)

Social Security (Administration) Act 1999 (Cth)

CASES

Beadle and the Director-General of Social Security (1984) 6 ALD 1

Secretary, Department of Family and Community Services and Jonauskas [2001] AATA 72

Sekhon v Secretary, Department of Family and Community Services (2003) 132 FCR 126

Skinner and Secretary, Department of Social Services [2015] AATA 569

SECONDARY MATERIALS

REASONS FOR DECISION

Senior Member A Poljak

25 October 2023

1. Mr Navneet Singh, the applicant, was in receipt of Austudy from 17 July 2006 on the basis he had commenced full time studies at Sydney TAFE.

2. On 31 July 2007, the applicant’s Austudy was cancelled from 5 February 2007 on the basis that he did not have a sufficient study workload, and a debt was raised for the period 5 February 2007 to 18 May 2007 (debt period) in the amount of $3,110.60 (the original decision). The applicant did not have a sufficient study load because he was not undertaking full-time study as required under section 569C of the Social Security Act 1991 (Cth) (the Act), and as such did not satisfy the activity test for Austudy under subsection 569(1) of the Act.

3. These proceedings concern the review of a decision made by the Administrative Appeals Tribunal (Social Services and Child Support Division) (SSCSD) on 23 February 2023. In that decision, the SSCSD affirmed the decisions made by Services Australia (then known as Centrelink) (the Agency) that the applicant was not qualified for Austudy during the debt period and was overpaid $3,110.60.

   Issues

4. The issues for determination in these proceedings are whether:

   (i)the applicant was qualified for Austudy during the debt period;

   (ii)the decision to cancel the applicant’s Austudy was correct;

   (iii)there is a legally recoverable debt; and

   (iv)there are any grounds for non-recovery of the debt.

   Background and Evidence

5. The applicant was in receipt of Austudy from 17 July 2006, on the basis he had commenced full time studies at Sydney TAFE.

6. Centrelink electronic documents and records show the following:

   (a)On 12 February 2007, the applicant contacted the Agency and advised of a change to his study details. He advised that he was commencing full time study at St George College of TAFE in a new course, a Diploma of Business Management, commencing 12 February 2007, and concluding 30 November 2007. The record also notes that he was advised of the general notification provisions.

   (b)On 12 February 2007, the Agency issued a notice pursuant to section 68 of the Social Security (Administration) Act 1999 (the Administration Act) addressed to the applicant’s recorded address at Brighton Le Sands, which stated that his Austudy was based on him studying full time at St George College of TAFE and that if his study load changed or if he ceased studying, he should let the Agency know within 14 days.

   (c)On 19 February 2007, the applicant contacted the Agency and advised that he was studying a new course at Sydney TAFE Ultimo, Level C - Certificate 4 in Information Technology and Networking, as a full-time student, commencing on 7 February 2009 and concluding on 10 December 2007. The record also notes that he was advised of the general notification provisions.

   (d)On 19 February 2007, the Agency sent a notice pursuant to section 68 of the Administration Act to the applicant addressed to his recorded address at Brighton Le Sands, which stated that the applicant’s Austudy was based on him studying full time at Sydney TAFE and that if his study load changed or if he ceased study, he should let the Agency know within 14 days.

   (e)On 10 April 2007, the Agency received a data match with New South Wales TAFE which stated that the applicant had withdrawn from his course with Ultimo TAFE with a total workload hours of 0.00.

   (f)On 23 April 2007, the Agency sent a notice pursuant to section 63 of the Administration Act to the applicant addressed to his recorded address at Brighton Le Sands, which requested for him to provide an official record of attendance for his course following a recent check with TAFE NSW. The applicant was given until 14 May 2007 to respond. The letter warned the applicant, if you do not respond to this letter, your payments may stop. You may also be found to have committed an Austudy participation failure. If you commit 3 or more Austudy participation failures in 12 months we may not be able to pay you for 8 weeks. If you do not contact us after your payments stop, we will assume the information we have received from the institution is correct and change our records accordingly. You may have to repay any Austudy you received incorrectly.

   (g)There does not appear to be a response to the Notice by the applicant and on 19 May 2007, the Agency sent a letter to the applicant addressed to his recorded address at Brighton Le Sands which stated that the applicant’s Austudy had been suspended under the social security law. The letter detailed the applicant’s rights to have the decision reconsidered.

   (h)On 31 July 2007, the original decision was made.

   (i)On 1 August 2007, the Agency sent a letter to the applicant addressed to his recorded address at Brighton Le Sands, which stated that a debt of $3,110.60 had been raised for the debt period on the basis he did not qualify for Austudy.

   (j)On 28 August 2007, the applicant contacted the Agency and stated that he advised the Agency in February or March 2007 that he had not commenced his course but that he was on a waiting list. The applicant also stated the debt was not his fault. The Agency organised for a quality check to be completed of the decision and a Customer Record Access Monitor report (CRAM report) was requested.  

   (k)On 3 September 2007, it was noted that the CRAM report for the period 1/02/2007 to 31/03/2007 was received and there was no evidence that the applicant had advised the Agency that his course had not yet commenced.

   (l)On 5 September 2007, a Centrelink Service Officer affirmed the decision to cancel and raise the debt. The reasons contained in the electronic records state, inter alia, I have checked the customers record and online documents. I have also requested a CRAM Report for the period 1 February 2007 to 31 March 2007. I have found no evidence that the customer advised [Centrelink] that he did not commence study nor that he was on a waiting list. I have noted that the customer was advised in writing on 12 and 19 February 2007 that his Austudy was based on full-time study at Ultimo College of TAFE. There is no evidence the Customer advised Centrelink he was not a full-time student. It was the Customers responsibility to advise Centrelink he was not a full-time student. As a result Customer was overpaid Austudy. On the same date, the Agency sent a letter to the applicant, addressed to his recorded address at Brighton Le Sands, informing him of the decision along with a debt notice which stated that he had a payment owing to the Agency of $3,110.60.

   (m)On 26 September 2007, the Agency again sent to the applicant a debt notice addressed to his recorded address at Brighton Le Sands, which stated that he had a payment owing to the Agency of $3,110.60.

   (n)On 11 October 2007, the applicant contacted the Agency and requested a review be completed by an Authorised Review Officer (ARO).

   (o)On 7 November 2007, the records indicate that the ARO had a telephone conversation with the applicant about the review. Amongst other things, the ARO relevantly recorded:

   He then advised me that I could speak to [Head Teacher of IT) or [Head of IT] who could confirm that he was on a waiting list. He advised the he was on a waiting list till about mid Feb or late Feb (when he was advised that he could not get). I advised him that I would call them but if they advise that he was not on a waiting list or that they had advised him that he would not be able to enrol in the course he would have a debt from then. I again asked him about Mar and his reply was that he thought [Centrelink] was aware in Feb.

   …

   ANNOTATE BY [ARO] ON 12 NOV 2007

   Spoke to [Head Teacher of IT]- Ultimo TAFE, on 12/11 @ 9:50 a.m., re: [ the applicant]. He advised me that from his records [the applicant] was successfully enrolled in Sem 1, 2007 from 7/2/07, however he had NS next to his name. I asked him what that meant and he replied that [the applicant] did not attend his classes. He also stated that [the applicant] was granted a fee exemption on 20/2…He then told me that he did not have any record of him being on a waiting list and that he would not have signed [the applicant’s] enrolment form if he had he been on a waiting list. He went on to explain that he doesn't allocate and sign student enrolments unless they have a spot…

   (p)On 12 November 2007, the ARO affirmed the debt, and a letter was sent to the applicant’s address at Brighton Le Sands. In the electronic records, the ARO recorded:

   After carefully looking at the case I have decided that the decision was correct.

   Ultimo College of TAFE have advised that [the applicant] was not undertaking studies in Semester 1, 2007. [The applicant] advised me during our telephone conversation on 7 November 2007 that 'he was on a waiting list to get into Ultimo TAFE and that he had advised Centrelink of this in February or March 2007'.

   I cannot locate any information that supports that [the applicant] had advised Centrelink that he was on a waiting list to get into Ultimo TAFE. __I have checked the relevant monitoring processes which indicate when any phone calls are received or when the computer system is accessed with his reference number. I have also checked the on-line document history and there is no evidence of [the applicant] advising Centrelink that he was on a waiting list to get into his TAFE course.

   I also spoke with [Head Teacher of IT] - Ultimo College of TAFE on [12] November 2007, who advised me 'that from his records [the applicant] successfully enrolled in Semester 1, 2007 in Information Technology and Networking on 7 February 2007, however he did not go to his classes'.

   (q)On 25 May 2009, 14 May 2010, 1 June 2011, 1 June 2012, 3 June 2013, 3 June 2014, 3 June 2015, 3 June 2016, 3 July 2017, 3 July 2018, and on 3 July 2019, the applicant was sent a debt notice addressed to his address in Brighton Le Sands, which stated that he had a payment owing to the Agency in the amount of $3,110.60.

7. Academic, attendance and study records produced under summons from TAFE NSW show that the applicant’s recorded address is the same address recorded with the Agency, being the address at Brighton Le Sands.  In 2007, the applicant was enrolled for full time study in the course, Certificate IV in Information Technology (Networking). Attendance records indicate that from 12 February 2007 to 18 June 2007, the applicant did not attend any classes.

   Consideration

8. In his application for review, the applicant provided written submissions dated 30 March 2023 and 23 August 2023. He outlined that he did not and never has acknowledged the debt. The applicant made submissions about the time that elapsed since the raising of the debt in 2007 and stated, Centerlink bringing this up after twenty years is not only illegal and unlawful, it is a racist unfair attack, harassment, intimidation, coercion, making me feel stressed and pressured to have a conversation and account for something that does not exist. The applicant stated that the decision of the SSCSD was sent to him on 8 March 2023, the day of HOLI, a day of celebration, peace, love, harmony, joy and happiness for all Indians worldwide signifying the triumph of good over evil. The applicant contended that this was deliberate as a form of psychological warfare against the applicant and his family. While this aspect has no bearing on the issues to be considered in these proceedings, I do acknowledge that the applicant is very upset about the timing of receiving his decision by the SSCSD. There is no evidence before me that this was in any way deliberate, and I highly doubt that such upset was intended.

9. Turning now to submissions of the applicant going to issues to be determined, the applicant claims that he does not remember the details of what occurred in 2007. Given the passage of time, I have no doubt this is the case, and this does not reflect poorly on the applicant. However, it does mean that objective evidence, particularly cotemporaneous objective evidence, is the most reliable.

10. The relevant available objective evidence has already been detailed in this decision. This consists of electronic documents and records provided by the Agency. The evidence plainly shows that the applicant informed the Agency that he was undertaking full time study at Sydney TAFE Ultimo on 19 February 2007; the applicant did not attend any classes in 2007 and has no academic record of completing any course in 2007.  

11. Despite this contemporaneous objective evidence, the applicant maintains the position that he contacted Centrelink about his study in February or March of 2007 and advised that he was on a waitlist for a course at TAFE. There is no record of such contact. The applicant alleges that the absence of such a record is a result of Centrelink’s incompetence and failures of staff.

12. The applicant confirmed at hearing that he did not undertake any study at TAFE in 2007 yet continued to receive Austudy payments. He contends that his Austudy payments should have been stopped and it was not up to him to tell Centrelink to stop the payments or to chase them up. The applicant further submits that the electronic records provided by the Agency have been created, made up and contain fraudulent details.

13. As the applicant was not undertaking full time study from 5 February 2007, he did not satisfy the activity test to qualify for Austudy throughout the debt period. The applicant’s Austudy was appropriately cancelled with effect from 5 February 2007, raising a debt for the debt period.

14. The applicant was paid $3,110.60 of Austudy during the debt period, which he was not entitled to receive. This amount is a debt due to the Commonwealth under subsection 1223(1) of the Act. Despite the passage of time, the debt is recoverable by the Commonwealth as the debt was initially raised on 1 August 2007, and the Agency has regularly sent notices to the applicant informing him of the debt and the requirement for the Agency to enforce the debt. Additionally, any interest subsequently charged on the outstanding debt was correctly imposed by the Agency under subsection 1229A(2) of the Act.

    Can the Debt Be Waived or Written Off?

15. Section 1236 of the Act set out circumstances in which a debt may be written off. There is no evidence that the applicant’s debt is irrecoverable at law, or that he has no capacity to repay the debt, or that his whereabouts are unknown. The applicant currently receives a gross amount of Carer Payment and Carer Allowance totalling over $1200 per fortnight.

16. Subsection 1237A(1) of the Act provides:

    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.

17. For the debt to be waived under section 1237A of the Act, it must be found that the debt was caused solely by administrative error; see Sekhon v Secretary, Department of Family and Community Services (2003) 132 FCR 126 at [35]. There is no evidence of sole administrative error leading to the existence of the debts in this case. Accordingly, the debt should not be waived pursuant to section 1237A of the Act.

18. The applicant claimed that he had informed the Agency sometime between February 2007 to May 2007, that he was not studying full time at TAFE and that he was on a waiting list and that the overpayment of Austudy was due to administrative error. As already stated in these reasons, there is no evidence that confirms the applicant had informed the Agency that he was not undertaking full time study during the debt period.

19. The applicant did not receive his Austudy payments in “good faith” within the meaning of subsection 1237A(1) of the Act. The applicant failed to advise the Agency that he was not studying full-time at all during the debt period, despite being informed that he was granted Austudy on the basis that he was a full-time student. The applicant knew or had reason to know that he was not studying full time so he could not have honestly held the belief that he was entitled to receive and retain Austudy payments.

20. Section 1237AAD of the Act provides:

    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, the Administration 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.

21. Each of the three limbs of the section must be satisfied before the debt may be waived. 

22. The onus is on the applicant to meet his obligations as defined in Centrelink correspondence; Secretary, Department of Family and Community Services and Jonauskas [2001] AATA 72. Ignorance of the law is no excuse. During the relevant period, the applicant knowingly made a false representation, resulting from his failure to accurately disclose his enrolment status/study load with TAFE NSW.

23. The applicant claims that he never received notices in relation to his Austudy debt and that he had moved away from Brighton-Le Sands area in about 2008 or 2009 and that he had no knowledge of the debt being raised and pursued since 2007. However, the evidence shows that the applicant was aware of the debt through his contact with the Agency to discuss the debt and seek review.

24. That brings me to consider whether there are special circumstances other than financial hardship alone which make it desirable to waive the debt. Special circumstances are not defined in the Act however the Tribunal is provided some guidance by several Federal Court and Administrative Appeals Tribunal cases. In the decision of Beadle and the Director-General of Social Security (1984) 6 ALD 1 at [3]:

    An expression such as “special circumstances” is by its very nature incapable of precise or exhaustive definition.  The qualifying adjective looks to circumstances of that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon 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 must have a particular quality of unusualness that permits them to be described as special (emphasis added).

1. I am not satisfied that there are any special circumstances in this case which are sufficient to warrant exercising the discretion to waive all part of the debt under section 1237AAD of the Act. It is in the public interest that the applicant’s debt is repaid. In Skinner and Secretary, Department of Social Services [2015] AATA 569 the Tribunal said at [48]:

   It is important to recognise the need to ensure the integrity of the social security system and the public interest. This means that those recipients who have received monies to which they are not entitled, are generally expected to repay those monies unless the repayment is in the specific circumstances unjust, unreasonable or inappropriate.

2. The applicant has not advanced a sound reason as to why the debt should not be repaid.

3. Neither part nor all of the debt should be written off or waived.

   DECISION

4. The decision under review is affirmed.

   Non-Publication Order

5. The applicant has sought an order under s35 of the Administrative Appeals Tribunal Act 1975 (Cth) for non-publication on the basis that he has a right to his privacy. He has not provided any other reason sufficient to depart from the usual course that proceedings and evidence filed in proceedings before the Tribunal must be public. The request for non-publication is refused.

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

..................................[SGD]....................................

Associate

Dated: 25 October 2023

Date(s) of hearing:	12 October 2023
Applicant:	Self-represented
Solicitor for the Respondent:	Mr T Chang, Services Australia