Swadling and Department of Education, Training and Youth Affairs - [2000] AATA 352

DECISION AND REASONS FOR DECISION [2000] AATA 352

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/876

GENERAL ADMINISTRATIVE DIVISION )

Re CATHERINE ROSE SWADLING
Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, TRAINING AND YOUTH AFFAIRS
Respondent

DECISION

Tribunal Ms S M Bullock, Member

Date4 May 2000
PlaceSydney

Decision The decision under review is affirmed

(Sgd) Ms S M Bullock
……………………………………
Member

CATCHWORDS
EDUCATION – AUSTUDY – overpayment – whether overpayment attributed solely to administrative error – whether debt should be waived due to special circumstances.

Student and Youth Assistance Act 1973 – ss 3, 42, 48, 287, 289, 290C
AUSTUDY Regulation – 8, 12, 109, 110
Social Security Legislation Amendment (Youth Allowance Consequential and Related Measures) Act 1998 – Schedule 11

Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Re Caldar and Secretary, Department of Employment, Education, Training and Youth Affairs (AAT 12575, 3 February 1998)
Re Condren and Secretary, Department of Family and Community Services (AAT 575, 4 August 1999)
Re Sargeant and Secretary, Department of, Education, Training and Youth Affairs (AAT 13446,13 November 1998)
Re Secretary, Department of Employment, Education, Training and Youth Affairs and Nevile (AAT 13120, 24 July 1998)
Re Wyer and Secretary, Department of Employment, Education, Training and Youth Affairs (AAT 13198, 21 August 1998)

REASONS FOR DECISION

Ms S M Bullock, Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mrs Catherine Rose Swadling (nee McLeod)("the Applicant") in relation to a decision made on 21 May 1998 by the Social Security Appeals Tribunal ("SSAT") that Mrs Swadling owed a debt to the Commonwealth arising out of an overpayment of AUSTUDY between 22 October 1996 and 31 December 1996 (T2). The SSAT's decision affirmed a decision of an Authorised Review Officer ("ARO") of the Department of Employment, Education, Training and Youth Affairs made on 12 February 1998 (T15). The ARO's decision affirmed the original decision of a delegate of the Secretary of the Department of Employment, Education, Training and Youth Affairs made on 12 September 1997 (T11) that a debt existed from an overpayment of AUSTUDY.
A hearing was held before the Tribunal in Sydney in 16 November 1999. Mrs Sawdling attended the hearing and provided oral evidence. Her husband, Mr Michael Swadling, also attended the hearing and provided oral evidence. At Mrs Swadling's request, Mr Swadling represented her. The Respondent, Secretary, Department of Education, Training and Youth Affairs ("the Department") was represented by Ms S Fraser, Solicitor with the Australian Government Solicitor's Office. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T documents T1-T23) and the following exhibits:
Exhibit Number Description Date
A1 A2 R1 R2 R3 R4 R5 Statement by Departmental Officer L Betes "Data-matching Program Review" by the Department of Social Security Respondent's amended Statement of Facts and Contentions Mrs Sawdling's (formerly Ms McLeod's) Claim for Newstart Allowance Statement from Liana Chandler, former Customer Service/Processing Officer, Blacktown Student Assistance Centre Departmental Computer Printout concerning advice of debt and recovery Chronology of Events prepared by Australian Government Solicitor 26 November 1996 27 November 1996 14 April 1999 3 December 1996 3 November 1999 15 November 1999 undated

ISSUES

The issues in this matter are:
·Whether or not a debt is due to the Commonwealth arising out of an overpayment of AUSTUDY allowance between 22 October 1996 and 31 December 1996; and if so,
·Whether or not the debt should be recovered.

LEGISLATION

The legislation relevant to a determination in this matter is the Student and Youth Assistance Act 1973 ("the Act") and the AUSTUDY Regulations. It should be noted that since the SSAT's decision, relevant sections of the Act have been repealed and re-enacted in identical form in sections 43B and 43F of the Act (Schedule 11 to the Social Security Legislation Amendment (Youth Allowance Consequential and Related Measures) Act 1998). Although this new Act also repealed provisions allowing for appeals of AUSTUDY decisions to the SSAT and the Tribunal, Mrs Swadling's application for review can proceed on the basis of the legislation as it was before 1 July 1998, the date of effect of Schedule 11.
Regulation 8 of the AUSTUDY Regulations set out when AUSTUDY is payable. Of relevance is subregulation 8.1 which provides that AUSTUDY ceases to be payable at the end of the last day of full time study.
Regulation 12E defines overpayments as they relate to AUSTUDY and specifically states that:
"12E What happens if AUSTUDY has been overpaid?
12E. If, in a year, the total of the AUSTUDY payments made to a student, or to a parent of a student for the student, under determinations of entitlement is greater than the amount that would have been payable if, when the first of the determinations was made:
(a)all the information relevant to the student's entitlement at any time in the year had been known to the Department; and
(b)acting on that information, the Department had correctly determined the student's entitlement for the whole year; an amount equal to the difference between the total amount paid and the amount that would have been properly payable under paragraph (b) is taken to be a student assistance overpayment for the purposes of Part 6 of the Act."
Section 289 of the Act provides that an overpayment must be waived if it arose solely as a result of administrative error on the part of the Commonwealth provided that the resulting overpayment was received in good faith. Subsection 289(1) of the Act states:
"289. Administrative Error
(1)Subject to subsection (1A), the Secretary must waive the right to recover the portion 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 portion of the debt.
Note: Subsection (1) does not allow waiver of 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).
…"
The requirements of section 48 of the Act and AUSTUDY regulation 109 make it clear that notification of a change in enrolment is a requirement of the Act because it is a prescribed event for the purposes of section 48 of the Act.
AUSTUDY Regulation 110 requires the notification of an event to be in writing.
Section 287 applies to the write off of a debt.
Section 290C of the Act was inserted into the Act by the Student and Youth Assistance Amendment (Youth Training Allowance) Act (No.2) 1995 and deals with the waiver of a part or whole of a debt in special circumstances. Section 290C of the Act relevantly provides:
"290C. 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; 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.
Note:     Section 287 allows the Secretary to write off a debt on behalf of the Commonwealth."

BACKGROUND

The following information is provided by way of background:
·Catherine Rose McLeod was born on 8 July 1974. She married Michael Swadling in February 1997 (T2, para 15).
·In 1994, Mrs Swadling had completed an Office Practice course at Blacktown TAFE (T3, A29).
·On 5 February 1996, Mrs Swadling applied for AUSTUDY for the 1996 year. She was undertaking a Youth Work course at Blacktown TAFE (T3, A28).
·On 21 February 1996, Mrs Swadling was advised by Centrelink that she was eligible for AUSTUDY from 4 March 1996 to 7 July 1996 at the standard rate (T5, A44). On 27 February 1996, Mrs Swadling was further advised that she was eligible for AUSTUDY at the standard rate from 4 March 1996 to 7 July 1996 and at the independent rate from 8 July 1996 until 31 December 1996 (T7, A48).
·On 3 December 1996, Mrs Swadling lodged a claim for Newstart Allowance (Exhibit R2). On the form, Mrs Swadling advised that she had ceased her study on 15 November 1996 at Blacktown TAFE where she was undertaking an Associate Diploma in Social Science (Youth Work) course.
·On 4 August 1997 in a "NSW TAFE Commission DEET Attendance Check (for AUSTUDY)" a handwritten note from the head teacher noted that Mrs Swadling had last attended her course on 21 October 1996 and further noted, "Erratic Attendance before that" (T10, A57, A58).
·On 12 September 1997, Mrs Swadling was advised by Centrelink that she was no longer entitled to AUSTUDY after 21 October 1996. As a result of this, an overpayment of AUSTUDY had been made to Mrs Swadling from 22 October 1996 to 31 December 1996 in the amount of $1,577.22 (T11, A59).
·On 29 September 1997, Mrs Swadling sought a review of this decision, attaching a statutory declaration. In the statutory declaration of 1 October 1997 Mrs Swadling wrote:
"On the 29th October 1996, I left my course of the Associate Diploma of Social Science due to me wanting to become employed. I approached the Department of Social Security for advice. A person of the name of Julie at the Hurstville branch of the DSS advised me. I have a friend who witnessed this. This was on the date of 4th November 1996. Her advice was to stay on Austudy payments till the end of the year and then claim Newstart allowance. The reason being, if I asked for DSS payments it would make a lot of paperwork for them and also because both departments do not work together it could possibly take many weeks. I will agree that I left my course on the date above.
I was qualified for a welfare payment due to me being unemployed for that time you claim. I didn't ask for dual payments and if you follow this up you will find that I was only paid Austudy for the time you have debted me. Due to still being on Austudy, I gave up having $10 extra a fortnight from my allowable payments. I know that I was to have a waiting period of time before I had to be given Newstart Allowance but as this a problem between departments I should not suffer due to the incompetence and bad advice given to me of both Austudy and the Department of Social Security." (T12, A62)

·A review was undertaken by a Departmental Review Officer, P. Fitzell, and on 12 February 1998 Mrs Swadling was notified by the review officer that the decision of the Departmental delegate had been affirmed (T15).
·On 24 February 1998, Mr Swadling applied to the SSAT for a review of the ARO's decision on behalf of his wife (T19).
·On 21 May 1998, the SSAT affirmed the ARO's decision noting:
"The tribunal has found that on the claim form Ms Swadling lodged for newstart allowance on 26 November 1996, which was the first notification of her discontinuation of studies, she falsely stated on the claim form that she had ceased studies on the 15 November 1996. This was in order to avoid a 14 day deferment period for payment of newstart allowance. As Ms Swadling made a false statement, she does not meet the requirements of section 290C and her debt can not be waived under this subsection. (T2, A11)
·Mr Swadling appealed to the Tribunal on behalf of his wife on 6 July 1998 noting that he could not find anywhere in the AUSTUDY application form that the notification of changes needed to be in writing. Mr Swadling further noted that neither he nor his wife had read the Act so how could they possibly have known that they were required to notify in writing. Mr Swadling acknowledged that:
"Catherine understands that there may of (sic) been a false representation on the form. This is in relation to the date she stopped ceasing studies. If the advice on the 4 November 1996 was correct then there wouldn't of been a misrepresentation. Catherine placed the date of 15th November 1996 not the 29 October as the date she ceased studies, solely for the reason that she was told in 1994 that it was a waiting time of six weeks for income support (paragraph 9, last sentence, page 4). Then on the 4th November we were told the waiting period was two weeks. Only about some 18 months later was she told this was wrong on a letter dated the 12 February 1998. This stated now that the education deferment period was waived." (T1, A4)
Mr Swadling disputed, on Mrs Swadling's behalf, that he was sure that at no time had the Department undertaken a review. A further reason provided by Mr Swadling as to why Mrs Swadling considered the SSAT's decision wrong lay in the contention that she at no time had income support except for AUSTUDY. The debt was directly attributed to the bad advice she and Mr Swadling received on 4 November from an officer at the Hurstville branch of the then Department of Social Security. Mr Swadling could not understand why Mrs Swadling continued to be paid AUSTUDY until the end of 1996 when she had filled out a Newstart Allowance Claim Form stating that she had ceased studies from 15 November 1996. The onus should be put back on Centrelink, Mr Swadling wrote, because the Department knew that she had ceased studies but did not pay her the correct allowance until 1 January 1997 (T1, A3, A4)

EVIDENCE OF MRS CATHERINE SWADLING

Mrs Swadling stated that she had initially left school in Year 10 and had undertaken a receptionist-type course in 1991, later obtaining employment in an office undertaking clerical work. Mrs Swadling stated that she was retrenched in about October 1992. Following this, Mrs Swadling decided to go back to school to study for her Higher School Certificate which she did in 1992 and 1993. She obtained her Higher School Certificate undertaking such subjects as Contemporary English, Maths, Home Science and Computer Studies. Mrs Swadling told the Tribunal that she had some difficulty with speaking publicly and also difficulty in reading and writing. Her husband is currently investigating the possibility of her attending some remedial reading and writing courses, she explained to the Tribunal.
Mrs Swadling stated that she had been in receipt of AUSTUDY prior to 1996 in 1994. There had been a previous overpayment of AUSTUDY in the amount of approximately $650 which she had repaid. Mrs Swadling explained to the Tribunal that at the time she was going to dispute this overpayment but in the end took no further action.
Mrs Swadling told the Tribunal that she has long been interested in working with children/youth, and in 1996 was successful in her enrolment in a youth worker course at Blacktown TAFE. At that time, she was living with her mother and two brothers aged 30 years and 20 years both of whom are in receipt of a Disability Support Pension, as is her mother.
Mrs Swadling was attending TAFE but finding some of the work, particularly the written project work, quite difficult. One of her teachers was concerned about her poor results and suggested to Mrs Swadling that she might consider leaving the course or alternatively repeat her failed subjects. Mrs Swadling stated that she eventually made her own decision to leave the course. Accordingly, she sought advice from an officer of Hurstville Office of the Department of Social Security, a friend of her husband's, whose name was Julie. Mrs Swadling stated that she told Julie that she was in receipt of an AUSTUDY Allowance and was going to leave her course. Julie advised Mrs Swadling to stay on AUSTUDY until the end of the year, Mrs Swadling told the Tribunal. The reason behind this advice was because, as Julie explained, there would be too much paperwork and then Mrs Swadling's subsequent claim for Newstart Allowance could be delayed. Mrs Swadling told the Tribunal that she thought that this advice was "a bit odd", acknowledging that she had previously had an overpayment of AUSTUDY because she was receiving two benefits when she was clearly not entitled to two benefits. Mrs Swadling accepted the advice however and also assumed that having told Julie that she had left her studies, that this would then result in the Department being informed that she had ceased her enrolment.
In relation to the date of cessation of her enrolment, Mrs Swadling acknowledged that there were a number of dates which she and/or her husband had provided on various occasions. On the claim for Newstart Allowance, the date of cessation of study was 15 November 1996 (Exhibit R2). On the Statutory Declaration dated 1 October 1997 that Mrs Swadling had written when seeking a review of the Department's decision, she stated that she had ceased her enrolment in the Associate Diploma of Social Science on 29 October 1996 (T12, A62).
When referred to a document completed by the Head Teacher of Blacktown TAFE on which it was recorded that Mrs Swadling last attended her course on 21 October 1996, Mrs Swadling acknowledged that this was probably the correct date for the cessation of her studies, adding that it was a long time ago but she believed that she ceased her enrolment in the latter part of October 1996. Mrs Swadling stated that the date of 15 November 1996 as the date of cessation of enrolment was arrived at by her husband, having considered the advice of the Departmental Officer, Julie. Mrs Swadling did not dispute that this date of 15 November 1996 was contrived but was keen to emphasise that it was arrived at following advice from the Department of Social Security Officer.
Mrs Swadling stated that the overpayment of AUSTUDY arose because she was given the wrong advice by the Department of Social Security.
The Tribunal was informed by Mrs Swadling that she had read the letter of 27 February 1996 advising that she was entitled to AUSTUDY at both the standard and independent rate for various periods up until 31 December 1996. Mrs Swadling acknowledged to the Tribunal that at A49, which is an attachment to the advice of AUSTUDY assessment made on 27 February 1996, there was a note which stated:
"CHANGED CIRCUMSTANCES?
You MUST notify this office of any change in your circumstances that may affect your assessment. This MUST be done within 7 days of the change. Please read the enclosed leaflet for information about you obligations" (T7, A49)

Mrs Swadling stated that she had kept this assessment letter but her general practice when she got such letters was to check the dates but not "the fine print". Mrs Swadling also agreed she would have seen the information box contained on the 1996 AUSTUDY Application form which noted:

"IMPORTANT!
You must tell AUSTUDY of any changes to the
information you have given on your form
within 14 days of that change occurring.
Failure to advise certain changes may result in
a penalty of $10 a week.
…

AUSTUDY – 1996
Additional Information
…

What if there are changes to the details I have on my form? You must tell the Department within fourteen days of the change. The change may affect the amount of AUSTUDY you are entitled to and lead to an overpayment which must be repaid. The longer you delay telling us, the larger your debt could become. The most common changes which affect AUSTUDY payments are: not starting studies or starting your course late; changing subjects in your course; withdrawing from your course; a brother or sister stops studying (this affects the parental income test); changes in your estimate of person income (e.g. you get a part-time job during the school holidays); …" (T1, A12, A13)

Mrs Swadling acknowledged that these specific pieces of information and instructions came both with the Application form and also following the Notice of Assessment of 27 February 1996 yet she did not have regard to them. Mrs Swadling further acknowledged in questioning from Ms Fraser that she had incurred an overpayment previously in relation to AUSTUDY because there had been an overlap between Social Security payment and AUSTUDY. Mrs Swadling agreed she had some familiarity and also understanding of the fact that she was not entitled to receive benefits from both AUSTUDY and the then Department of Social Security in the form of a Newstart Allowance.

At the time of the hearing, Mrs Swadling was seeking employment. She and her husband were renting accommodation paying approximately $155 per week. They had a credit card debt which was being repaid and also had approximately $500 contained in a bank savings account.
Mrs Swadling stated that she and her husband had no children and both Mr and Mrs Swadling enjoyed good health. Mrs Swadling stated that if she and her husband needed financial assistance then her parents–in-law had offered to help. Mrs Swadling is owed money by her father however she has not seen him since her mother and father separated when she was 16 years old.
Currently, the only asset owned by Mr and Mrs Swadling is a car.
In terms of Mr Swadling's employment, Mrs Swadling stated that he was on a four month contract with Qantas but this had expired and at the time of hearing he had recommenced on a Newstart Allowance. Mrs Swadling told the Tribunal that Mr Swaddling was in receipt of wages of between $500 and $600 when he was working and would be looking for work again through an agency.
EVIDENCE OF MR MICHAEL SWADLING
Mr Michael Swadling was born on 21 July 1973. He first met Mrs Swadling in late August 1996 and they subsequently married in February 1997. At the time of their meeting, Mr Swadling was studying part-time at St George TAFE.
Mr Swadling told the Tribunal that he had never been in receipt of AUSTUDY, but had received Jobsearch and Newstart Allowances at various times during four periods of unemployment. Mr Swadling has had a previous appeal to the SSAT in relation to another matter and was successful in having a decision set aside with the effect that he received back payment of Unemployment Benefit.
Soon after Mr and Mrs Swadling met, Mrs Swadling spoke to Mr Swadling about what she wanted to do with her life. She had not been doing well in her TAFE course, Mr Swadling explained. It was mainly Mrs Swadling's decision to leave her course, but Mr Swadling told the Tribunal that he advised her that if she was having troubles with her studies then she should leave.
At that time, Mr Swadling had kept a diary and he stated that he had recorded in the diary that Mrs Swadling had left her TAFE course on 29 October 1996. Mr Swadling stated that unfortunately he no longer possessed the diary as it had been thrown out or lost following their move to a new home. He also noted that the 1996 diary was not kept because he did not think that he would need it, not being aware at that time of the issue of an overpayment of AUSTUDY.
Having made the decision not to continue with her studies, Mr Swadling accompanied Mrs Swadling to the Hurstville office of the Department of Social Security where they spoke to a customer service officer, Julie, who was previously known to Mr Swadling. Julie had earlier advised Mr Swadling in relation to matters he had with the Department of Social Security and her advice on those previous occasions had always been accurate. Mr Swadling therefore sought Julie out because he considered that she would provide Mrs Swadling with accurate advice in her situation. Mr Swadling told the Tribunal that Mrs Swadling explained to Julie that she had ceased her studies at the Blacktown TAFE and wished to claim Newstart Allowance. The advice from Julie was to the effect that Mrs Swadling should continue to receive AUSTUDY for the remainder of 1996 and that she should also submit a claim for Newstart. Mr Swadling told the Tribunal that "we wanted to do everything by the book". Julie stated that because there was going to be a great deal of paperwork and a delay in Mrs Swadling receiving Newstart Allowance, that the best course for Mrs Swadling, in order that she receive the Newstart Allowance as soon as possible, was to continue with the AUSTUDY payments and not inform the Department of her cessation until a later date. Mr Swadling reiterated that he and Mrs Swadling had no reason to doubt Julie's advice.
When it came to completing the Newstart Claim form, Mr Swadling assisted his wife to fill out the details. Mr Swadling suggested the date of 15 November 1996 as the date Mrs Swadling should note for cessation of her enrolment. This date, Mr Swadling told the Tribunal, took account of a two week deferment period before receipt of a Newstart Allowance and took into account the advice of the Department of Social Security officer, who advised that they should put a date for cessation of studies later than it was in actuality.
Presently, Mr Swadling is not working but is looking for employment, having just ceased a short-term contract with Qantas. Financially, Mr and Mrs Swadling have a credit card debt of approximately $3,800 owed to the ANZ bank but have been managing to make regular repayments. They have no other outstanding debts, although they are finding it difficult to meet their everyday expenses. On occasions Mr and Mrs Swadling have had to obtain financial assistance from Mr Swadling's family. Mr Swadling stated that he was in fact considering whether or not they should seek the assistance of the Salvation Army.
In relation to health, Mr Swadling stated that both he and his wife are healthy.
Mr Swadling has come to realise that Mrs Swadling has reading and writing difficulties. Mr Swadling stated that his wife has been assessed as reading "at the level of a 14 year old" and consequently, he recently has been investigating the possibility of Mrs Swadling attending a Department of Education reading and writing course. This course costs approximately $100 per month although Mr Swadling believes that Mrs Swadling would obtain some financial assistance in attending this course from Centrelink.
In relation to Mrs Swadling's application for review of the Department's decision, in relation to the AUSTUDY overpayment and the recovery of a debt, Mr Swadling stated that he had helped his wife complete the Statutory Declaration of 1 October 1997 and acknowledged that in that document, a different date of 29 November 1996 had been included as the date of cessation of studies (T12, A62). Mr Swadling further acknowledged that the debt incurred by Mrs Swadling had occurred because there had been an overlap of benefit.
SUBMISSIONS
Mr Swadling made submissions on Mrs Swadling's behalf. He acknowledged that his wife had not informed AUSTUDY as required, when she had ceased her enrolment and that later, a number of different dates had been supplied for the cessation of her studies. The Department of Social Security knew of the cessation of studies on about 4 November 1996 when they discussed the matter with the counter officer, Julie. When Mrs Swadling's claim form for Newstart Allowance was completed and lodged on 26 November 1996, the Department of Social Security was at least aware from Mrs Swadling's notation within the claim form that she had ceased studying full time on 15 November 1996 (Exhibit R2). In such circumstances, Mr Swadling submitted that the Department of Social Security knew about the date of cessation and in addition, a Department of Social Security officer, L Betes, acknowledged that Mrs Swadling had come to the counter on 26 November 1996 and that the officer had advised Mrs Swadling that she may receive an overpayment in due course (Exhibit A1). Mr Swadling submitted that in such circumstances, the Department of Social Security having received notification of Mrs Swadling's cessation of studies on 15 November 1996, should have communicated this information to AUSTUDY. If this had occurred, then the debt owed by Mrs Swadling would either have been nil or significantly reduced from the debt she later incurred. Mr Swadling submitted that it was most unreasonable that nearly a year later Mrs Swadling should be informed that she had been overpaid AUSTUDY allowance.
Mr Swadling submitted that the Department should itself take some responsibility for the existence of the overpayment, recognising its fault in this matter. In so submitting, Mr Swadling conceded that Mrs Swadling herself must bear some responsibility for her actions of not informing the Department of her cessation of studies within the required time and providing different dates as to when she did cease her studies.
Referring to Exhibit A2, a "Data-Matching Program Review" completed by a Department of Social Security officer on 27 November 1996, Mr Swadling submitted that from this form, it appeared that the overpayment was $827.20. Mr Swadling stated that Mrs Swadling accepted this overpayment of which $300 had already been repaid to the Department, Mrs Swadling having entered into a repayment scheme of $100 per month. Accordingly, Mr Swadling stated that the debt remaining owed by Mrs Swadling to the Commonwealth as a result of her overpayment of AUSTUDY was $527. Mrs Swadling accepted that debt and would continue to repay that amount. Having accepted that there is a debt of $527 remaining at the time of hearing, Mr Swadling stated that they did not accept the larger amount of debt as submitted by the Department in the amount of $1,577.22.
While accepting that Mrs Swadling bore some responsibility for the overpayment of AUSTUDY, Mr Swadling submitted that there were special circumstances in this case, in particular the errors and omissions of both the Department of Social Security and the Department in communicating with each other and further, Mr and Mrs Swadling were in a tightened financial situation. This combination of factors, Mr Swadling considered, were circumstances that the Tribunal should take into account in terms of the waiver of the debt.
Ms Fraser submitted that section 289 of the Act did not apply in this case as the overpayment was not caused by any administrative error on the part of the Department, but rather because Mrs Swadling failed to notify the Department of changes to her enrolment circumstances. This meant that she continued to be paid AUSTUDY until 31 December 1996 when she was not entitled to this allowance.
Ms Fraser wished to clarify the situation in relation to Mr Swadling's submission that the total debt owed to the Department was only $827.20, a figure which he had obtained from Exhibit A2. Ms Fraser submitted that this overpayment related to Mrs Swadling's earlier overpayment of AUSTUDY incurred during February/March 1996. Further Ms Fraser referred to Exhibit A2 under the section "details of match" in which it was recorded that the details referred to "NSS/DEET(from 4/3/96)". Ms Fraser submitted that this clearly referred to the earlier payment of AUSTUDY which Mrs Swadling acknowledged in her evidence had occurred earlier in 1996.
Referring to regulation 109(1)(iii) of the Act, Ms Fraser submitted that Mrs Swadling was required to tell the Department if she changed her enrolment. Further, AUSTUDY regulation 110 requires that such notification be in writing and under section 48 of the Act, such notice of change of circumstances must be within seven days. Ms Fraser submitted that Mrs Swadling had not informed the Department within the required period of her cessation of enrolment and when she had provided advice to the Department of Social Security of the date of cessation of enrolment being 15 November 1996, she had later in a Statutory Declaration of 1 October 1997 to the Department stated the date of cessation was 29 October 1996. It was not until a data matching exercise had been completed by the head teacher of Blacktown TAFE on 4 August 1997 that the date of cessation of studies seemed to be correctly identified as 21 October 1996 (T10). Ms Fraser submitted that, accordingly, the likely true date of Mrs Swadling's cessation of her course at Blacktown TAFE was 21 October 1996. Ms Fraser provided a statement from Liana Chandler made on 3 November 1999 in relation to the processes dealing with correspondence and enrolment checks. Ms Chandler held the position of Customer Service/Office at the Blacktown Student Assistance Centre from October 1991 to approximately April 1999. In relation to the enrolment checking process as detailed at T10, Ms Chandler indicated that in relation to the processing of the enrolment check for Mrs Swadling, it was not impossible for such a delay to occur for both AUSTUDY and Centrelink checking enrolment details. Ms Chandler further noted that the enrolment checking process, from her experience, could be lengthy extending into weeks or even months before TAFE received a printout from DEETYA (Exhibit R3) detailing enrolment details.
Ms Fraser referred to Re Condren and Secretary, Department of Family and Community Services (AAT 575, 4 August 1999) in which the Applicant in that case had relied on a welfare officer to inform the Department of Family and Community Services of a change of his circumstances that he had been imprisoned. While that Tribunal accepted that Mr Condren genuinely believed that the Department would be informed of his change of circumstances, Senior Member Barbour found that the act of requesting a welfare officer to contact the Department of Family and Community Services did not discharge Mr Condren's personal obligation to notify the Department of Family and Community Services himself. Similarly, Ms Fraser submitted that while Mrs Swadling may have believed that Julie from the Department of Social Security would have contacted the Department about her changed circumstances relating to her cessation of enrolment, this did not discharge Mrs Swadling's personal responsibility under the Act. Ms Fraser referred to the various notices Mrs Swadling had received requiring her to inform the Department of any change in circumstances including a change or cessation of her enrolment.
Referring to Re Secretary, Department of Employment, Education, Training and Youth Affairs and Nevile (AAT 13120, 24 July 1998), Ms Fraser submitted that in that matter the Tribunal accepted that incorrect advice had been provided to the Applicant but despite such a finding, the Tribunal noted that the overpayment was not caused by such incorrect advice, but rather because the Respondent in that case, Dyani Nevile, had failed to advise the Department that her enrolment had changed. This set of circumstances is precisely what has occurred in Mrs Swadling's case, Ms Fraser submitted, in that the Department was not advised of a change of enrolment circumstances by Mrs Swadling until the data matching process had been completed by TAFE on 4 August 1997 (T10). Further, Ms Fraser pressed the point that false declarations had been made by Mrs Swadling in her Newstart Allowance claim form in relation to the date of cessation of studies and also in the statutory declaration on 1 October 1997 in support of Mrs Swadling's request for Departmental review of the overpayment decision. Accordingly, Ms Fraser submitted that there was a debt due to the Commonwealth arising out of Mrs Swadling being overpaid AUSTUDY Allowance from 22 October 1996 to 31 December 1996 because she had failed to notify the Department of her cessation of studies and further she had also provided incorrect advice as to the date of cessation of her enrolment.
Turning to whether or not the debt should be recovered, Ms Fraser submitted that it is not appropriate to write off the debt under section 287 of the Act because of the particular circumstances in this case.
Ms Fraser next considered the issue of whether the debt should be waived under section 290C of the Act because of the special circumstances of the case. Referring to Re Caldar and Secretary, Department of Employment, Education, Training and Youth Affairs (AAT 12575, 3 February 1998), Ms Fraser submitted that the Tribunal found in that case the Applicant had knowingly failed to comply with his obligations under the Act. Similarly, in Re Wyer and Secretary, Department of Employment, Education, Training and Youth Affairs (AAT 13198, 21 August 1998), The Tribunal found the Applicant failed to advise the Respondent in writing of a change of circumstances and hence section 290C could not be utilised.
In Mrs Swadling's circumstances and referring to subsection 290C(a)(i), Ms Fraser submitted that waiver of an overpayment is precluded if the debt arose from the debtor or another person knowingly making a false statement or false representation or failing or omitting to comply with a provision of the Act. Ms Fraser submitted that Mrs Swadling did not notify the Department of her change in her enrolment until she lodged her claim for Newstart Allowance on 26 November 1996. In any event, the information provided therein, in respect of the date that Mrs Swadling ceased full time study, was incorrect. Hence, Ms Fraser contended that Mrs Swadling had made a number of false statements concerning the date of cessation of enrolment and also had omitted to comply with the Act in that she had not provided within the correct time, notification of her cessation. In such circumstances, the decision of the SSAT should be affirmed, Ms Fraser concluded.
FINDINGS
The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the submissions, the legislation and case law.
Mr and Mrs Swadling were cooperative in the provision of their evidence and frank in the information provided to the Tribunal.
Before turning to the specific issues in this case of whether or not a debt exists and if so whether the debt should be recovered, the Tribunal makes a number of general findings of fact.
The Tribunal finds that Mrs Swadling had earlier during 1996 experienced an overpayment of debt arising out of the overlap of being paid AUSTUDY and a Department of Social Security benefit.
The Tribunal also finds that Mr and Mrs Swadling attended the Hurstville office of Social Security in or about 4 November 1996 and discussed with a counter officer Mrs Swadling's options in relation to a claim for Newstart Allowance, having ceased her enrolment at Blacktown TAFE on 21 October 1996. The Tribunal accepts that Mrs Swadling may well have been provided with advice to continue with the payment of AUSTUDY until the end of the year. In response to such advice, Mrs Swadling decided to lodge a claim for a Newstart Allowance in which she wrote that the date of cessation of her studies was 15 November 1996. This date of cessation of studies, the Tribunal finds, was false and Mrs Swadling knew that it was false because at the time of completing the claim form she had already ceased her studies on or about 21 October 1996. Mr Swadling had assisted Mrs Swadling with the completion of the Newstart Allowance claim form and in the provision of the incorrect date of cessation of enrolment, as a means of contriving the circumstances to minimise the delay in receipt of Newstart Allowance once AUSTUDY had stopped.
The Tribunal further finds that when seeking a review of the Department's decision that an overpayment had occurred and a debt was due to the Commonwealth in the amount of $1,577.22, that the date of cessation of enrolment of 29 October 1996 provided in the statutory declaration of 1 October 1997 was also incorrect.
The Tribunal finds that Mrs Swadling was provided with advice by the Department in the application for AUSTUDY and its accompanying notes and also in the Notice of Assessment and its accompanying notes that she must notify the Department within a specified time of certain information including any changes to her enrolment or indeed cessation of enrolment. Mrs Swadling did not inform the Department within seven or 14 days of any changes to her circumstances in that she had ceased her enrolment at Blacktown TAFE. In so doing, Mrs Swadling had failed to or omitted to comply with provisions of the Act to inform the Department of changes in circumstances.

Having so found, the Tribunal turned to consider the first issue as to whether or not a debt existed. Mrs Swadling was paid AUSTUDY up until 31 December 1996 as is evidenced in Mrs Swadling's bank statements (T14, A70). Mrs Swadling had ceased her enrolment at Blacktown TAFE on 21 October 1996 and accordingly was not entitled to receive AUSTUDY between 22 October 1996 and 31 December 1996. Mrs Swadling had failed to comply with AUSTUDY regulation 109. Further, in relation to subregulation 8(a), Mrs Swadling ceased to be payable for AUSTUDY when she ceased study.
Under AUSTUDY regulation 12E which defines overpayments as they relate to AUSTUDY, Mrs Swadling has an AUSTUDY overpayment arising out of the amount of AUSTUDY paid to her between 22 October 1996 and 31 December 1996. Accordingly, the Tribunal finds that a debt is due to the Commonwealth under sections 3 and 42 of the Act and the amount of the debt has been correctly calculated at $1,577.22.
The next issue for the Tribunal to determine is whether or not the debt should be recovered.
Considering Mrs Swadling's circumstances, which include those of her husband, the Tribunal finds that there are no grounds for write off of the debt under section 287 of the Act. Accordingly, the Tribunal turns to consider whether or not section 290C of the Act applies in Mrs Swadling's case in terms of whether or not there is the possibility for the debt to be waived under special circumstances. Before special circumstances can be considered under this section, there must be a conclusion under subsections 290C(a)(i) and (ii) that the debt did not result wholly or partly from the debtor or another person knowingly making a false statement or false representation or failing or omitting to comply with a provision of the Act. The Tribunal has already found that Mrs Swadling did not notify the Department of her discontinuation of studies and therefore failed to comply with regulations 109 and 110 and section 48 of the Act. In so doing, Mrs Swadling failed or omitted to comply with provisions of the Act. Further, the Tribunal has also found that Mrs Swadling had knowingly made a number of false statements in relation to the date of cessation of studies. The Tribunal has found that Mrs Swadling ceased studies on 21 October 1996 and yet in her Newstart Allowance Claim form the date of cessation was falsely recorded as 15 November 1996, contrived following discussion with a Department of Social Security officer. This advice from the Departmental officer, which the Tribunal finds was incorrect, did not absolve Mrs Swadling from her responsibility to firstly provide correct information to the Department and also to provide timely information in terms of the requirements imposed upon her under the Act. A further date of 29 October 1996 was provided as the date of cessation of studies (T10), and this again was incorrect. Accordingly, the Tribunal finds that Mrs Swadling does not meet the provisions of subsections 290C(a)(i) and (ii) of the Act and therefore section 290C of the Act is not satisfied as a whole. Further, even if the Tribunal had found that subsection 290C(a) of the Act was satisfied, in all of the circumstances described to the Tribunal by Mrs Swadling and her husband, the Tribunal does not consider that such circumstances fall within the legislative requirements of special circumstances as dealt with by various courts and tribunals.
In all the circumstances, the Tribunal does not consider that the debt owed by Mrs Swadling to the Commonwealth arising out of an overpayment of AUSTUDY between 22 October 1996 and 31 December 1996 can be waived under section 290C as the provisions of this section are not met. The debt should be recovered in amounts commensurate with Mrs Swadling's ability to pay. The Tribunal also notes Mr Swadling's understanding that interest on the debt will be waived, following his request for this to occur. Ms Fraser's advice from the Debt Recovery Unit of the Department is that there is no record of any undertaking not to include any interest. Mr Swadling submitted a written application for waiver of interest on 29 November 1999, after the hearing in this matter. The Tribunal does not know the outcome of Mr Swadling's request but has no jurisdiction to deal with the interest matter.
Accordingly, in all the circumstances and for the reasons set out above, the Tribunal decides under section 43 of the Administrative Appeals Tribunal Act 1975 that the decision under review is affirmed.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of:
Ms S M Bullock, Member
Signed:         .....................................................................................
  Associate
Date of Hearing  16 November 1999
Date of Decision  4 May 2000
Representative for the Applicant     Mr M Swadling, husband
Solicitor for the Respondent             Ms S Fraser, Solicitor,
  Australian Government Solicitor's Office