Suzanne Robinson and Secretary, Department of Social Services
[2014] AATA 446
[2014] AATA 446
Division General Administrative Division File Number
2013/3454
Re
Suzanne Robinson
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 4 July 2014 Place Perth The decision under review is affirmed.
............................[sgd]............................................
S D Hotop
Deputy President
CATCHWORDS
SOCIAL SECURITY – austudy – overpayment of austudy – debt due to Commonwealth – waiver of debt – special circumstances – notional entitlement to newstart allowance – no special circumstances that make it desirable to waive debt – debt recoverable – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth), s 568, s 569, s 569A, s 569C, s 593, s 603AA, s 1223, s 1236, s 1237A and s 1237AAD
Social Security (Administration) Act 1999 (Cth), s 68
CASES
Oberhardt v Secretary, Department of Education, Employment and Workplace Relations (2008) 174 FCR 157
Secretary, Department of Social Security v Hales (1998) 82 FCR 154
Re Wilson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 154
REASONS FOR DECISION
Deputy President S D Hotop
4 July 2014
Introduction
Suzanne Robinson (“the applicant”) has applied to the Tribunal for review of a decision of the Social Security Appeals Tribunal (“SSAT”), dated 27 June 2013. That decision affirmed a decision of a Centrelink Authorised Review Officer (“ARO”) that an overpayment of austudy in the amount of $9,336.33 had been made to the applicant for the period from 6 February 2012 to 12 October 2012 and that the amount of that overpayment is a debt due to the Commonwealth by her which should be recovered from her.
The Evidence
The evidence at the hearing before the Tribunal consisted of the “Section 37 Documents (T Documents)”, comprising documents T1–T26 (pp 1-141), lodged on behalf of the Secretary, Department of Social Services (“the respondent”), and:
· the applicant’s Outline of Evidence, filed on 29 January 2013 (as amended) (Exhibit A1);
· Centrelink “Medical Report for Assessor” form completed by Dr Yvonne Tan (Exhibit A2);
· documents containing emails sent and received by the applicant in the period from 20 February 2012 to 4 April 2013 (Exhibit A3); and
· the oral evidence of the applicant.
After the hearing the Tribunal directed the respondent to file and serve evidence regarding the grant of newstart allowance to the applicant with effect from 23 October 2012 and directed both parties thereafter to file and serve written submissions in relation to the issue whether the applicant had a “notional entitlement” to newstart allowance for the period from 6 February 2012 to 12 October 2012 (see paragraphs 49–55 below). The evidence filed and served by the respondent pursuant to that direction comprises the following documents:
·extract from a claim for disability support pension lodged by the applicant on 23 October 2012 (Exhibit R1);
·“Customer Declaration Form – Newstart Allowance” in respect of the applicant’s claim for newstart allowance lodged on 14 December 2012 (Exhibit R2); and
·“Employment Pathway Plan” entered into by the applicant on 7 January 2013 (Exhibit R3).
The Factual Background
The following relevant background facts are not in dispute and are found by the Tribunal on the basis of the T Documents.
On 13 February 2012 the applicant lodged with Centrelink a completed “Claim for Austudy” form, signed by her and dated 13 February 2012, in which it was indicated that (inter alia);
· she was currently a full-time student;
· she was currently studying in the first year of the “Diploma of Financial Counselling” course (course code D325) at “Central Tafe”. (T3, pp 28–29)
By letter dated 3 May 2012 Centrelink informed the applicant that (inter alia):
· a decision had been made that she would be paid austudy from 6 February 2012;
· her austudy was based on her “studying full time at PERTH CAMPUS – CENTRAL INSTITUTE OF TECH (TAFE), Tertiary Group D Course with the course ending on the 6 July 2013”;
· if her study load changed or if she ceased study, she should let Centrelink know within 14 days.
That letter went on to state:
“ You must tell us within 14 days about events or changes in circumstances affecting your payment …” (T4, p 32)
By letter dated 11 May 2012 Centrelink provided to the applicant a statement including austudy payments and study details for the period 18 February 2012 – 11 May 2012. That letter stated (inter alia):
“ Please check the information on this statement carefully. If the details on this statement are correct there is no need for you to contact Centrelink. If your circumstances have changed please contact us within 14 days. This request is an information notice given under social security law. …” (T5)
By letter dated 2 October 2012 Centrelink informed the applicant that they had recently tried to contact her by telephone to discuss her austudy but their attempts to contact her had been unsuccessful and requested her to contact Centrelink within 14 days. (T6)
On 12 October 2012 the applicant faxed to Centrelink a letter from her, dated 11 October 2012, and relevant documents including Central Institute of Technology Enrolment Summaries issued on 2 August 2011 and 8 October 2012 and Student Financial Statement issued on 8 October 2012 (T7). The applicant’s letter of 11 October 2012 states as follows:
“ I am writing in regards to my Austudy payment. …
Centrelink requires verification that my fees have been paid to confirm eligibility of payments made. Following please find a copy of statement of registration August 2011. The fees were paid in full prior to 31st December 2011. This would explain the lack of need to pay any further fees in 2012.
In saying this I have while discussing the matter with Central TAFE I have [sic] discovered that where as the course I am studying is a full time course, I in fact have already completed a number of the units within the course. This now determines that the course I am studying is actually part time which I did not realise when making Austudy application 6 months after commencement of course.
I am faxing all relevant documentation with this advice.
This has placed me in the position of being paid Austudy incorrectly. As a student I am not in a financial position to repay this without setting in place a payment plan. I look forward to talking to a Centrelink representative to discuss this matter further.” (T7, p 42)
On 18 October 2012 Centrelink decided that the applicant was not entitled to receive payments of austudy for the period from 6 February 2012 to 12 October 2012 and raised a debt of $9,336.33 against her. (T25, p 118)
On 17 April 2013 a Centrelink ARO affirmed the decision of 18 October 2012 to raise and recover from the applicant a debt of $9,336.33 being the amount of austudy paid to her for the period from 6 February 2012 to 12 October 2012. (T10)
On 27 June 2013 the SSAT affirmed the ARO’s decision of 17 April 2013. (T2)
The Applicant’s Evidence
The applicant tendered her Outline of Evidence filed on 29 January 2014 and she confirmed that, subject to a minor amendment, its contents are true and correct. The applicant’s Outline of Evidence (as orally amended by her) states as follows:
“ …
On 2 August 2011 I enrolled at Central Tafe for an on-line course in Financial Counselling.
I understood that the course was for 18 months and that my enrolment was full time for the whole course of 18 months.
I started doing study and assignments for the course in 2011 and kept going into 2012.
I did not realise I had to re-enrol at the end of 2011 for 2012.
In February 2012 I applied for Austudy on the basis that I was continuing my studies into 2012.
When I submitted my application there were parts of the form I was not able to fill in as I was not sure of the details (eg hours per week and dates of start and finish for the year and for the course).
I asked the Centrelink representative to check my application and make sure all necessary details were provided before it was processed. I was told by the representative that there was an automatic link up to Tafe enrolments and they would do this anyway.
Centrelink commenced payments of Austudy in May 2012 and I presumed everything was OK.
I continued with my studies and assignments into 2012, getting emails back from my tutors as to how I was going. So there was no suggestion to me from Tafe that I was not enrolled for 2012.
In October 2012 Centrelink rang me and queried my status at Tafe, namely whether I was enrolled and also whether it was a full time course.
At that time I had no reason to believe that I was not enrolled.
In regard to my study load, my enrolment was said to be a full time course. After the Centrelink enquiry I checked with Tafe and they told me that as I had completed some units, I was no longer a full time student. I am still not sure, but there may have been some recognition of prior learning that was added in so that I did not have to do all the units. As far as I know, the hours that I was down for were 175 hours per semester.
Looking at documents given to the Tribunal (eg T26, page 132) 166 hours per semester is said to be sufficient for eligibility for student payments. So I’m still not sure about this aspect.
In 2011 and in 2012-13 I did have certain problems.
In June 2011 I had to leave my retail job at Spotlight store in Innaloo following a breakdown. This was related to workplace difficulties and aggravated because I suffer from a long standing bi-polar disorder.
The Spotlight job had been important to me because it had enabled me to get off the disability pension.
In this context I had decided to do the course at Tafe, so that I could get future employment.
I was also taking a lot of responsibility for my elderly father. He lived out from Perth at Two Rocks and was not well. I had to arrange to get him to medical appointments and also make decisions on his behalf. One of the decisions was whether he, as an 86 year old, should have a major operation. Following considerable difficulties, my father died on 22 March 2013.
All of this has created incredible stress.
In May 2012 I was admitted to Sir Charles Gairdner Hospital for a 48 hour stay, having suffered a mild heart attack.
Also, my physical health was and is not good generally. I suffer from rheumatoid arthritis.
As far as my bi-polar condition is concerned, I take medication that has been prescribed for me by my doctor, Dr Yvonne Tan. I know my condition does affect me by aggravating stress and losing concentration.
I finished study at Tafe in June–July 2013 as I was not really progressing.
I am currently on Newstart rental support allowance and I work part time as a cleaner.
Centrelink is deducting $35 per fortnight from the Newstart allowance in respect of the Austudy that was paid to me, but I find this quite a burden.
I ask that the re-payment of the Austudy be waived because of special circumstances.” (Exhibit A1)
The applicant also gave oral evidence to the following effect:
·although the Enrolment Summary document issued to her on 2 August 2011 by Central Institute of Technology (T7, p 44) indicated that it covered the period from 1 January 2011 to 31 December 2011, she did not take any notice of those dates – she just enrolled and “put the paperwork away”, a lecturer told her that she had 18 months to complete the course, and she then “went on [her] merry way”;
·when she enrolled on 2 August 2011 her enrolment fee totalled $310 and she paid that fee by instalments commencing on 2 August 2011 and ending on 20 September 2011;
·she had enrolled in a full-time course and assumed she was a full-time student;
·at the end of 2011 she had only completed 6 months of an 18-month course and she continued to study that course into 2012;
·in May 2012 when she received her first austudy payment, she was “struggling”, doing some part-time cleaning work, and studying “the best [she] could” – she was “quite stressed out” and “starting to get quite depressed” because of financial circumstances which were concerning her;
·she started to submit “assessments” and the lecturers would “critique” them and return them to her and she felt encouraged and that she was “on track” and “accomplishing what [she] had set out to do”;
·her elderly father’s health started to deteriorate in April/May 2012 and he passed away in March 2013, having been hospitalised from October 2012;
·when she wrote to Centrelink on 11 October 2012 (see paragraph 9 above) in response to their query, she thought that the only issue was whether she was studying a full-time course, not whether she was enrolled in that course;
·she believed that her enrolment in August 2011 covered the whole of the 18-month course in which she had then enrolled;
·she has had a depressive illness since she was about 16 years old;
·her depressive illness stops her from “functioning too well” – it gives her “a sense of impending doom”, that she is not achieving, and results in her not attending to matters or forgetting about them, and “everything seems to become quite disjointed”;
·her cognitive function was adversely affected by her depressive illness when she completed the austudy claim form in February 2012 and she relied on Centrelink staff for assistance in filling out that form;
·she currently works as a cleaner and earns about $650-$700 per week (gross);
·she also receives $135 per fortnight by way of Newstart Allowance “rent support”, from which $35 per fortnight is deducted by Centrelink towards payment of the debt of $9,336.33 which was raised against her;
·she pays rent of $390 per week;
·she pays about $100 per month on overdraft interest;
·she pays about $50 per month towards her credit card debt;
·she receives food support from her Church community services;
·her legal representation in this proceeding is being provided on a pro bono basis;
·she accepts the fact that she was not enrolled in the TAFE course in 2012 but she understands that, although she was not eligible for austudy, she would have been eligible for newstart allowance;
·when her austudy was cancelled she was immediately granted newstart allowance because, being over 55 years of age, she did not have to find work, she was studying, and she was doing volunteer work with her Church;
·she was communicating with her TAFE assessor by email from February 2012 about her “assessments” and her submitted “assessments” were continuing to be accepted by her TAFE assessor;
·she also communicated by email with a TAFE lecturer in March/April 2013 about obtaining an extension of her enrolment until 30 June 2013 to enable her to complete the course;
·she did not pay any enrolment fees other than the enrolment fees she paid in August/September 2011;
·she did not complete any of the courses in which she had enrolled in August 2011.
Additional Evidence Tendered by the Applicant
The applicant tendered in evidence a Centrelink “Medical Report for Assessor” form signed by Dr Yvonne Tan which indicated that (inter alia):
·Dr Tan had examined the applicant on 6 March 2013;
·the applicant had been Dr Tan’s patient since 25 September 2012;
·the applicant has two medical conditions which have a significant impact on her ability to function, namely, depression and rheumatoid arthritis;
·the applicant has a “longstanding history of major depressive disorder” with a “recent relapse in the setting of [her] father’s illness”;
·current depressive symptoms are “insomnia, low mood, tense muscles, racing thoughts, issues with poor concentration/memory”;
·the applicant was hospitalised on 15–16 May 2012 with chest pains. (Exhibit A2)
The applicant also tendered in evidence (Exhibit A3) documents containing:
·a chain of emails between her and her TAFE assessor regarding her ongoing assessments in the periods February–April 2012, June 2012, October–November 2012, April 2013; and
·a chain of emails between her and a lecturer at Central Institute of Technology in March 2013 regarding her enrolment.
The latter chain comprises the following three emails:
·an email sent by the lecturer to the applicant on 20 March 2013 which states:
“ …
We have been requested by admin [email protected] to advise on your enrolment status because records indicate that your enrolment end date has passed. They further advise that a result will need to be entered unless a legitimate extension is requested.
This means that you will need to re-enrol to complete the course.
…”;
·an email sent by the applicant to the lecturer on 24 March 2013 in which the applicant stated that she wanted to complete the course and requested an extension;
·an email sent by the lecturer to the applicant on 25 March 2013 which states:
“ …
I agree with you that it will be good for you to finish and be awarded your Diploma when finished.
I see you have five exemptions in the course and started on the financial legal assessments in Learning Program 2 of which you have completed one and two others on hold. There are another three assessments and work in financial legal.
You need these units and to later on enrol in 8 other units in community development and systems advocacy and counselling to complete this Diploma of 17 units.
As your enrolment was in 2011 the enrolment was originally for 6 months and extended to February 2013. Given your circumstances I have just discussed with [MC in admin] and she will extend you until the 30 June 2013 to complete these units if this helps. Do you think this will help you complete the outstanding requirements in Learning Program 2?
This course is self-paced and there are many students and P… [the assessor] and I are happy to support you within these limits should you go on or whether you prefer to re-enrol to give yourself more time.
…”.
The Relevant Legislation
Social Security Act 1991 (Cth)
Section 568 of the Social Security Act 1991 (Cth) (“the Act”) sets out the general rule for qualification for “austudy payment in respect of a period” and includes the requirement that the relevant person satisfy the “activity test” throughout that period.
Section 569(1) of the Act provides:
“ … a person satisfies the activity test in respect of a period if the person satisfies the Secretary that, throughout the period, the person is undertaking qualifying study (see section 569A).”
Section 569A of the Act provides:
“ 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).”
Section 569C of the Act relevantly provides:
“ 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) …
Note: For normal amount of full-time study see section 569E.”
Part 5.2 of Chapter 5 of the Act contains provisions specifying the various types of debt recoverable under the Act. Section 1223(1) in Part 5.2 of the Act provides:
“ 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.”
The phrase “social security payment” is defined in s 23(1) of the Act and includes “austudy payment”.
Part 5.4 of Chapter 5 of the Act contains provisions relating to non-recovery of debts, including ss 1236, 1237A and 1237AAD.
Pursuant to s 1236 of the Act, a debt may be written off.
Pursuant to s 1237A of the Act, “the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth” must be waived “if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt”.
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.”
Social Security (Administration) Act 1999 (Cth)
Section 68 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) authorises the Secretary to give to a person to whom a “social security payment” (including austudy payment) is being paid a notice requiring the person to inform the Department if “a specified event or change of circumstances occurs” which might affect the payment of the relevant “social security payment”.
Findings
The applicant does not dispute that she was not formally enrolled in the Diploma of Community Services (Financial Counselling) course (“the course”) at Central Institute of Technology (“CIT”) in 2012, although she was nevertheless continuing to undertake online study in that course by submitting various assignments for assessment purposes during that year.
The Tribunal notes that there is no authoritative evidence before it which confirms that the applicant was formally enrolled in the course at CIT in 2012, and, in the absence of such evidence, the Tribunal is not satisfied that the applicant was formally enrolled in the course at CIT in 2012.
Accordingly, the Tribunal is not satisfied that the applicant was “undertaking qualifying study” (as defined in s 569A of the Act), within the meaning of s 569(1) of the Act, in 2012.
It follows, having regard to the evidence before the Tribunal, that the applicant was not qualified for austudy payment under s 568 of the Act in the period from 6 February 2012 to 12 October 2012 (“the relevant period”), and the Tribunal so finds.
It is common ground that the applicant was paid a total amount of $9,336.33 by way of austudy payment in the relevant period.
The Tribunal finds that, pursuant to s 1223(1) of the Act, the amount of $9,336.33 which was paid to the applicant by way of austudy payment in the relevant period is a debt due to the Commonwealth by the applicant.
The Issue
The issue then arises as to whether that debt should, or should not, be recovered by the Commonwealth from the applicant under Chapter 5 of the Act.
The applicant did not submit that that debt should be written off pursuant to s 1236 of the Act or waived pursuant to s 1237A of the Act. The applicant did submit, however, that that debt should be waived pursuant to s 1237AAD of the Act.
Accordingly, the sole issue presented for the Tribunal’s determination in this proceeding is whether the conditions specified in paras (a), (b) and (c) of s1237AAD of the Act are fulfilled and, if so, whether it is appropriate to exercise the power conferred by that section to waive the Commonwealth’s right to recover that debt.
Analysis
Is the condition set out in para (a) of s 1237AAD of the Act fulfilled?
Paragraph (a) of s 1237AAD of the Act will be fulfilled in the present case if the Tribunal is satisfied that the debt did not result wholly or partly from the applicant “knowingly”:
·making a false statement or a false representation; or
·failing or omitting to comply with a provision of (relevantly) the Act or the Administration Act.
The respondent’s Statement of Facts, Issues and Contentions filed and served in this proceeding (as adopted by the respondent at the hearing) contains the following relevant contentions:
“38. On 3 May 2012 Ms Robinson received a letter from Centrelink notifying her that she had been granted Austudy (T4). This letter was a notice for the purposes of s 68 of the Administration Act and contained the following statement:
If your study load changes or if you cease study you should let us know within 14 days.
39.The Secretary contends that Ms Robinson was aware of the obligation to provide information to Centrelink as this letter advised her to advise Centrelink of any changes to her circumstances which related to her enrolment status for the purposes of Austudy.
40.The Secretary therefore contends that as Ms Robinson knew of the obligation to advise Centrelink of changes to her enrolment status, she knowingly failed to comply with that obligation. If Ms Robinson knowingly failed to comply with her obligation under the social security legislation, the debt cannot be waived pursuant to s 1237AAD of the Social Security Act.” (original emphasis)
The Tribunal does not accept the contention set out in para 40 of the respondent’s Statement of Facts, Issues and contentions. Although it may reasonably be contended that the applicant falsely represented to Centrelink, in the “Claim for Austudy” form which she lodged on 13 February 2012 (see paragraph 5 above), that she was currently enrolled in the course at CIT, and that she failed to comply with s 68 of the Administration Act by failing to inform Centrelink, in response to the notices given to her by Centrelink on 3 May 2012 and 11 May 2012 (see paragraphs 6 and 7 above), that she was not then enrolled in the course at CIT, the Tribunal is not satisfied that the applicant made such false representation, or so failed to comply with s 68 of the Administration Act, “knowingly”, in the sense of consciously or deliberately, within the meaning of para (a) of s 1237AAD of the Act. Instead, the Tribunal is satisfied, on the basis of the applicant’s evidence, that she genuinely believed that she was enrolled in the course at CIT from the beginning of 2012 and, accordingly, that the abovementioned false representation and failure to comply with s 68 of the Administration Act were not perpetrated by her “knowingly” within the meaning of para (a) of s 1237AAD of the Act.
Accordingly, the Tribunal is satisfied that the condition set out in para (a) of s 1237AAD of the Act is fulfilled in this case.
Is the condition set out in para (b) of s 1237AAD of the Act fulfilled?
Paragraph (b) of s 1237AAD of the Act will be fulfilled in the present case if the Tribunal is satisfied that “there are special circumstances (other than financial hardship alone) that make it desirable to waive”.
The applicant submitted that the following constellation of circumstances in her case constituted special circumstances, for the purposes of para (b) of s 1237AAD of the Act, which made it desirable to waive the whole of the debt due by her to the Commonwealth:
·her longstanding depressive illness and its adverse effect on her cognitive functioning when claiming austudy in 2012;
·her ongoing communications with her CIT tutor/assessor during 2012 regarding her assessments on the apparent basis that she continued to be enrolled in the course;
·Centrelink’s granting her claim for austudy in May 2012 and thereafter continuing to make austudy payments to her until October 2012 without making proper timely enquiries of CIT regarding her enrolment status in 2012; and
·her “notional entitlement” to newstart allowance for the relevant period, if she was not entitled to austudy payment for that period.
As regards the lastmentioned circumstance, the Federal Court of Australia (Spender J), in Oberhardt v Secretary, Department of Education, Employment and Workplace Relations (2008) 174 FCR 157, described the expression “notional entitlement” as referring to “an unclaimed benefit; a benefit which was not actually claimed by the person, but to which that person would have been entitled had they applied for it” (at 163 [32]) and held that:
“ … notional entitlement should not be excluded from the range of available relevant considerations in deciding whether there are ‘special circumstances’ to waive a debt under s1237AAD” (at 170 [64]).
Spender J added that it would be an erroneous approach to the consideration of “special circumstances”, for the purposes of s 1237AAD of the Act, to consider the concept of notional entitlement “in isolation” from other relevant circumstances of the particular case (at 173 [82]).
The application of the discretionary power, conferred by s 1237AAD of the Act, to waive a debt where there are “special circumstances (other than financial hardship alone) that make it desirable” to do so has been the subject of numerous decisions of the Federal Court of Australia and of the Tribunal. The scope and purpose of that discretionary power were described by the Federal Court of Australia (French J) in Secretary, Department of Social Security v Hales (1998) 82 FCR 154 at 155, 162:
“ From time to time in the administration of social security benefits overpayments occur. Sometimes these are the result of innocent non-compliance with the requirements of the law which can be affected by the stress associated with the circumstances that led to the receipt of benefits in the first place. The taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to receive will be recovered, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the person concerned. However, the confining of a recovery regime by rigid rules, particularly in this area of the law, is likely to be productive of unfair or harsh outcomes in some of the great variety of fact situations that can arise. There are provisions in the Act which recognise that reality. They relate to the writing off and the waiver of debts otherwise due to the Commonwealth. …
…
The concept of special circumstances is broad. A constellation of factors, including financial circumstances, may fall within it. The express exclusion of financial hardship alone as a special circumstance is an indicator that it would otherwise be included. This gives some measure of the range of circumstances which will qualify as special. But as a matter of grammar and ordinary logic, the exclusion of financial hardship alone as a special circumstance does not mandate its inclusion in the range of matters constituting such circumstances for the purpose of enlivening the Secretary’s discretion.
…
The evident purpose of s 1237AAD is to enable a flexible response to the wide range of situations which could give rise to hardship or unfairness in the event of a rigid application of a requirement for recovery of debt. It is inappropriate to constrain that flexibility by imposing a narrow or artificial construction upon the words. It may be that there will be few cases in which the Secretary will be satisfied that there are special circumstances in the absence of financial hardship. It may be that there are few cases in which having found special circumstances to exist, the Secretary would exercise the discretion to waive in the absence of financial hardship. But to anticipate the limits of the categories of possible cases by imposing on the language of the section a fetter upon its application which is not mandated by its words, is to erode its useful purpose.”
Having regard to the circumstances referred to in paragraph 41 above, in the context of the whole of the evidence in this case, the Tribunal is not satisfied that those circumstances collectively constitute “special circumstances … that make it desirable to waive” the relevant debt (or part thereof) due by the applicant to the Commonwealth. In the Tribunal’s opinion those circumstances are not such that recovery by the Commonwealth of the whole of that debt from the applicant would be unjust, unfair, unreasonable or otherwise inappropriate, for the following reasons.
Although the Tribunal accepts that the applicant genuinely believed that she was enrolled in the course at CIT from the beginning of 2012 and throughout the relevant period, that belief was, in the Tribunal’s opinion, not reasonable. It was, in the Tribunal’s opinion, presumptuous and naïve of the applicant to believe that her enrolment in the course on 2 August 2011 (for a total fee of $310.00) would cover, not only her studies for the remainder of 2011, but also for the whole of 2012 (and, perhaps, beyond 2012 until she completed the course). As the applicant acknowledged in her own evidence, having received from CIT, on 2 August 2011, her Enrolment Summary document which indicated that it covered the period from 1 January 2011 to 31 December 2011, she did not take any notice of those dates, “put the paperwork away” and “went on [her] merry way”.
Although the Tribunal accepts that the applicant continued to communicate with her CIT assessor by email from February 2012 about her course assessments and her assessor continued to accept her submitted assessments, the Tribunal does not accept that those circumstances constitute reasonable grounds for her belief that she was formally enrolled in the course at CIT in 2012, given the accepted fact that no Enrolment Summary document or other official documentation evidencing her enrolment in 2012 had been issued to her by CIT.
The Tribunal notes the applicant’s evidence regarding her longstanding “depressive illness” and its adverse effect on her cognitive functioning when she was completing her “Claim for Austudy” form in February 2012, thereby causing her to rely on Centrelink staff for assistance in filling out that form. The Tribunal also notes the medical evidence tendered by the applicant in relation to that condition (see paragraph 15 above). That medical evidence, however, relates to an examination of the applicant by her general practitioner, Dr Tan, on 6 March 2013. Although the medical report form completed by Dr Tan confirms a diagnosis of “depression”, it dates the onset of that condition vaguely as “prior to Sep 2012” – that is, some time prior to the date when Dr Tan commenced to treat the applicant, namely, 25 September 2012 (see Exhibit A2). The form also refers to a “longstanding history of major depressive disorder” but contains no details of relevant symptoms experienced by the applicant in February 2012 or at any time prior to September 2012. The Tribunal notes, furthermore, that, in February 2012, the applicant was submitting “assessments” and communicating with her CIT assessor by email in apparently positive terms (see Exhibit A3). Although the Tribunal accepts the applicant’s evidence that she has a depressive illness of long standing – according to her evidence, since she was about 16 years old – the Tribunal is not satisfied, on the basis of the evidence before it, that that condition was having a significant adverse effect on her cognitive functioning in February 2012 when she completed her austudy claim form.
In the Tribunal’s opinion the relevant debt due by the applicant to the Commonwealth resulted from her unreasonable (albeit, genuine) belief that her enrolment in the course at CIT in August 2011 also covered her studies in that course in 2012, on the basis of which she did not formally enrol in the course in 2012 and as a result of which she falsely represented to Centrelink, and led Centrelink to continue to believe, that she was enrolled in the course in and from February 2012.
The applicant’s submission that she had a “notional entitlement” to newstart allowance in the relevant period and that that “notional entitlement” should also be considered in determining whether the whole of the circumstances referred to in paragraph 41 above constitute “special circumstances” for the purposes of s 1237AAD of the Act was raised, but not explored in depth, at the hearing. As previously indicated (see paragraph 3 above), the Tribunal subsequently directed the parties to file and serve written submissions in relation to that issue, and such submissions were duly filed and served. Having carefully considered those submissions, however, the Tribunal has come to the conclusion that the “notional entitlement” issue does not advance the applicant’s case for a waiver of the relevant debt under s 1237AAD of the Act for the following reasons.
The arguable relevance of the “notional entitlement” issue to the exercise of the discretionary power conferred by s 1237AAD of the Act to waive the Commonwealth’s right to recover a debt seems to be that, if the debtor would have been entitled to a social security payment, other than the one actually received and whose receipt resulted in the debt, had they claimed it instead of the one actually claimed, the amount they would have received by way of that other social security payment might be set off against the amount of the debt, thus arguably rendering it appropriate to waive the whole or part (as appropriate) of the debt. Waiver of a debt in those circumstances would arguably be appropriate because, having regard to the abovementioned setting off, the Commonwealth would, in effect, not be financially disadvantaged thereby.
It is common ground that, following the cessation of her austudy payment on 16 October 2012, the applicant first unsuccessfully claimed disability support pension on 23 October 2012 and subsequently claimed newstart allowance, the latter being granted with effect from 23 October 2012. It is also common ground that the rate of payment of newstart allowance is greater than the rate of payment of austudy payment.
For the purpose of considering the “notional entitlement” issue, the Tribunal will assume that, on 13 February 2012, the applicant claimed newstart allowance instead of austudy payment. It is, however, insufficient for present purposes merely to assume that the applicant claimed newstart allowance on 13 February 2012 because that assumption raises questions that must be answered in order to determine, for notional setting off purposes, the total amount of newstart allowance which the applicant would have received in the relevant period. These questions (which relate to the period for which the applicant would have been qualified for newstart allowance and the amount of newstart allowance that would have been paid to her) include:
·Given that the applicant was unemployed on 13 February 2012, for what period(s) would the applicant have been unemployed throughout the relevant period (that is, in the period up until 12 October 2012)?
·How much by way of income from either full-time or part-time employment (the Tribunal notes the applicant’s evidence that she presently works part time and earns $650-$700 per week, while in receipt of newstart allowance “rent support”) would the applicant have received during the relevant period?
·For what period(s) would the applicant have satisfied the “activity test” for the purposes of s 593(1)(b) of the Act, or be taken to have satisfied the “activity test” pursuant to s 603AA of the Act, during the relevant period?
·Assuming that the applicant entered into a “Newstart Employment Pathway Plan”, within the meaning of paras (c)-(f) of s 593(1) of the Act, for what period(s), while the plan was in force, would the applicant have been complying with the requirements in the plan?
In written submissions the applicant referred to her entering into an Employment Pathway Plan on 7 January 2013 (Exhibit R3), whereby she agreed to:
·“undertake 30 hours per fortnight of part time education or training with Central TAFE from 07/01/2013 to 08/04/2013 …”;
·“participate in 12 hours of voluntary work per fortnight with Victory Life Centre from 07/01/2013 to 08/04/2013 …”;
·“attend fortnightly Disability Employment Services appointments with At Work Australia”;
and submitted that her doing so led to “a strong inference” that she would have been prepared to enter into a similar plan had she claimed newstart allowance in February 2012 and that there is a “high probability” that she would thereby have satisfied the activity test during the relevant period and been entitled to newstart allowance during that period.
However, even if a “high probability” or “likelihood” that the applicant would have been qualified for, and received, newstart allowance during the relevant period would suffice for the purposes of the application of the “notional entitlement” concept (see Re Wilson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 154 at [16], [17]), the Tribunal, having regard to the whole of the evidence before it, would still be unable to determine the answer to each of the questions set out in paragraph 52 above – and, accordingly, would still be unable to determine for what period(s) the applicant would (probably) have been qualified for newstart allowance during the relevant period and what amount of newstart allowance would (probably) have been paid to her during that period – to its reasonable satisfaction.
Having considered the issue of the applicant’s “notional entitlement” to newstart allowance in the relevant period, the Tribunal, having regard to the uncertainty involved in the application of that concept in the circumstances of the present case, concludes that that concept does not provide any useful assistance to the Tribunal in determining whether it is satisfied that there are “special circumstances … that make it desirable to waive” (within the meaning of s 1237AAD (b) of the Act) the relevant debt due by the applicant to the Commonwealth.
Having regard to the matters discussed in paragraphs 45–55 above, the Tribunal is, for the purposes of para (b) of s 1237AAD of the Act, not satisfied that there are “special circumstances … that make it desirable to waive” the relevant debt due by the applicant to the Commonwealth.
Accordingly, the Tribunal is not satisfied that the condition set out in para (b) of s 1237AAD of the Act is fulfilled in this case.
Is the condition set out in para (c) of s 1237AAD of the Act fulfilled?
Having regard to the conclusion stated in paragraph 57 above, it is unnecessary to answer this question.
Conclusion
Because the Tribunal is not satisfied that the condition set out in para (b) of s 1237AAD of the Act is fulfilled in this case, it follows that the relevant debt, in the amount of $9,336.33, due by the applicant to the Commonwealth cannot be waived under that section. As previously mentioned, the applicant did not seek to rely on any other provision in the Act under which debts due to the Commonwealth may be waived or written off. Accordingly, the Tribunal concludes that the abovementioned debt is recoverable from the applicant by the Commonwealth pursuant to Parts 5.2 and 5.3 of Chapter 5 of the Act. The Tribunal notes the applicant’s evidence that that debt is presently being recovered from her by means of deductions from her payments of newstart allowance at the rate of $35.00 per fortnight.
Decision
For the above reasons, the decision under review is affirmed.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop ...........[sgd D Brodie]...............................................
Administrative Assistant
Dated 4 July 2014
Date of hearing 4 February 2014 Date of last submissions 3 June 2014 Counsel for the Applicant Mr P Vincent Solicitors for the Applicant Castledine Gregory Representative of the Respondent Ms S Yik Long Solicitors for the Respondent Australian Government Solicitor
Key Legal Topics
Areas of Law
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Administrative Law
Legal Concepts
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Judicial Review
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Administrative Decisions (Merits) Review Act 1977 (Cth)
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Social Security (Administration) Act 1999 (Cth)
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