Taylor and Secretary, Department of Education, Employment and Workplace Relations

[2011] AATA 569

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 569

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/4701

GENERAL ADMINISTRATIVE DIVISION		)
Re		Robert Taylor

Applicant

And Secretary, Department of Education, Employment and Workplace Relations

Respondent

DECISION

Tribunal Senior Member Jill Toohey

Date of decision               4 August 2011

Date of written reasons  18 August 2011

Place  Sydney

Decision The decision under review is affirmed.

................[sgd]..............................

Senior Member

CATCHWORDS

SOCIAL SECURITY – ABSTUDY – whether applicant overpaid – whether special circumstances – decision under review affirmed.

Social Security Act 1991, ss 1236, 1237

REASONS FOR DECISION

18 August 2011	Senior Member Jill Toohey
Background

1.      Mr Robert Taylor seeks review of a decision that he was overpaid ABSTUDY and must repay $3,324.03.  A hearing was to be held at the Dubbo Courthouse on 4 August 2011 but Mr Taylor did not attend.  When the Tribunal telephoned his grandmother, with whom he lives, to ask if he would be attending, she advised that he was away for work.  After talking with her, I decided to make a decision based on the documents before the Tribunal and submissions by the respondent, whose representative attended the hearing.  These written reasons reflect the reasons given orally at the hearing.

Mr Taylor’s application for ABSTUDY

2.      In March 2008, Mr Taylor was 16 years old. He was in Year 10 at Dubbo Christian School and working part-time at Woolworths.

3.      On 19 March 2008, Mr Taylor and his grandmother went to the Centrelink office in Dubbo to lodge a claim for ABSTUDY.  It appears they were given some help to complete the form.  It shows that Mr Taylor was earning $160.00 a week.  A handwritten note on the form records “Have put in my resignation & will finish up this week”.

4.      Because it appeared he would have no income from employment from the end of the following week, Mr Taylor was granted the maximum rate of ABSTUDY of $194.50 a fortnight from 13 March 2008.

5.      In fact, Mr Taylor did not resign from Woolworths but continued to work part-time.  As he was earning more than the allowable amount each week, he ended up being overpaid ABSTUDY by $3,324.03 for the period 25 September 2008 to 5 May 2010.

6.      Mr Taylor and his grandmother say that neither of them made the note on the application form that he would be resigning, and that it was wrong.  They say he always planned to keep working part-time and neither of them would have told the Centrelink officer that he would be resigning.

7.      It is not clear how the note came to be written.  I accept what Mr Taylor and his grandmother say but, clearly, somewhere along the way, communication became confused.

8.      Neither Mr Taylor nor his grandmother realised he was being overpaid until he was at Centrelink on 15 April 2010 and discussed his payment with an officer there. 

9.      Mr Taylor agrees that he received regular letters from Centrelink about his payment which asked him to advise if his income changed.  He agrees that his income increased over time as his hours varied.  He acknowledges that he should have read the letters, but he did not. 

10.     Mr Taylor and his grandmother say that Centrelink had made an error by incorrectly recording that he would be resigning from work.  However, they do not dispute, in the end, that he has been overpaid.  He is currently repaying the debt at $37.00 each fortnight.

Is there any reason Mr Taylor should not have to repay the debt?

11.     The Social Security Act 1991 provides that, depending on the circumstances, a person may not have to repay some or all of a debt.

12.     In some cases, a debt may be written off, meaning it will not be recovered at this time but may be recovered in future if circumstances change: s 1236.  None of the provisions for writing off a debt apply to Mr Taylor. 

13.     A debt must be waived if the overpayment was due solely to administrative error and was received in good faith: s 1237 A(1).  I accept that Mr Taylor received the ABSTUDY payment in good faith but I am not satisfied that the overpayment was due solely to an administrative error by Centrelink.

14.     A debt may be waived if there are special circumstances: s 1237 AAD.  However, Mr Taylor does not argue that there are any special circumstances which mean he should not have to repay the debt.  He has been repaying it and will continue to do so.

15.     Taking all of these matters into account, I affirm the decision under review.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey

Signed:         ...............[sgd].................................................................
           Diana Weston, Associate

Date of Hearing  4 August 2011
Date of Decision  4 August 2011
Date of Written Reasons          18 August 2011
Applicant  Self-represented
Solicitor for the Respondent     Ms R de Hosson