Taylor and Secretary, Department of Family and Community Services

[2003] AATA 1087

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1087

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/248

GENERAL ADMINISTRATIVE DIVISION		)
Re		WILLIAM TAYLOR

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr B J McCabe, Member

Date31 October 2003

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

(Sgd) B J McCabe
  Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – austudy – whether applicant undertaking full-time study – whether overpayment has been made – whether overpayment should be recovered – administrative error – special circumstances

Social Security Act 1991

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

REASONS FOR DECISION

31 October 2003 Mr B J McCabe, Member  

1.      Mr Taylor seeks review of the respondent’s decision to raise and recover an overpayment of Austudy made to the applicant in the period 19 February to 28 August 2002. The decision to raise a debt was affirmed by the Social Security Appeals Tribunal (the SSAT) on 21 February 2003,

2.      The amount of the overpayment is $4519.88. A departmental Authorised Review Officer and the SSAT decided to waive $638.94 of that amount because Centrelink had made an administrative error by failing to advise Mr Taylor that he could be eligible to receive Newstart Allowance in that period.

3. The Tribunal heard this matter on 21 August 2003 at Gympie. Mr Taylor attended the hearing and represented himself. Ms Wallis-Dunn, a Departmental Advocate, appeared for the respondent. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, and Mr Taylor gave oral evidence at the hearing.

Factual Background

4.      Mr Taylor and his wife have an interest in music and multimedia technology. They have recently established a business providing multimedia services. Mr Taylor commenced studying multimedia subjects in 2001 as part of a Certificate IV in Technology course offered at the West Coast College in Perth.  Mr Taylor undertook those studies as a full-time student and received Austudy payments at the time.

5.      In early 2002, Mr Taylor and his family moved to Queensland.   Mr Taylor says he spoke with Centrelink staff on 19 February 2002. He informed them he intended to continue his studies in Queensland when he found an appropriate course.  After making inquiries, Mr Taylor decided to enrol in a Diploma of Multimedia Studies with Southbank TAFE.  The course was of two years duration.  He contacted Centrelink staff on 20 March 2002 and advised them he had enrolled in the diploma course.

6.      Mr Taylor received Austudy payments from 19 February 2002 until 20 March 2002 on the basis he was previously enrolled in full-time study and intended to re-enrol as a full-time student in a course of study when enrolments for that course were next accepted.

7.      Data-matching conducted by the respondent in August 2002 revealed the applicant was only undertaking a part-time study workload.  He was only enrolled in one module, with a study workload of 20 hours per semester.  Mr Taylor explained to the Tribunal that he undertook a much deeper examination of each topic then the course required and, accordingly, he considered himself to have undertaken the workload of a full-time student. 

8.      Mr Taylor appeared to be a dedicated and enthusiastic student, who was eager to learn and develop his skills to ensure that his business venture would be a success.  These are admirable qualities, but they do not change the fact that he was only enrolled, in the eyes of the TAFE college, on a part-time basis.

Legislative Framework and Consideration

9.      In order to be eligible to receive Austudy under the terms of the Social Security Act 1991 (the Act), a person must be enrolled in an approved course of education as a full-time student or a concessional study-load student (see section 569A).  A person may also be eligible for Austudy where they have previously been enrolled in full-time study and intend to enrol in further study when enrolments in the next course are accepted.  It is accepted in this case that Mr Taylor is not a concessional study-load student. Terefore, to be eligible to receive Austudy, he must be enrolled as a full-time student or intend to re-enrol as a full-time student in the next study semester available.

10.     Section 569C of the Act provides that a person is a full-time student if the person is undertaking at least three quarters of the normal amount of full-time study in respect of their course of study during a semester.  The meaning of the phrase the normal amount of full-time study is considered in section 569E of the Act. The relevant sub-section in this case is sub-section 569E(1)(c) which provides the normal amount of full-time study in respect of a course such as Mr Taylor’s is:

“…an amount of full-time study equivalent to the average amount of full-time study that a person would have to undertake for the duration of the course in order to complete the course in the minimum amount of time needed to complete it.”

11.     Centrelink obtained information from Southbank Institute of TAFE as to the workload expected of a full-time student in the course undertaken by Mr Taylor.  The TAFE college advised that a normal full-time study load to complete a diploma course in the minimum time allowed is the completion of modules carrying at least 210 hours of expected study per semester. Mr Taylor was only enrolled in one module, which had an expected study workload of 20 hours in a semester.

12.     It cannot be said that Mr Taylor was a full-time student as required under the Act.  He was not expected to complete 210 hours of study per semester, nor was he required to complete 75% of that workload.  The expected workload for the module in which he was enrolled was only 20 hours per semester.  It follows he was ineligible to receive the Austudy payments made to him from 18 March 2002 to 28 August 2002. 

13.     Should $3880.94 - the amount of the overpayment apart from the amount waived by the respondent and the SSAT - be recovered from the applicant?  The Act provides for the non-recovery of debts due to the Commonwealth in certain circumstances.

14.     Section 1237A provides that a debt can be waived were the debt arose solely from an administrative error of the Commonwealth.  This is the provision under which $638.94 of the debt has already been waived.  There is no evidence before the Tribunal to establish that the remainder of the debt was caused solely by an administrative error on the part of Centrelink.  The debt arose in this case as a result of the applicant failing to advise Centrelink that he was undertaking only a part-time study load in his course of study.  His failure to notify Centrelink of the level of his study workload contributed to the debt arising, and, therefore, the debt is not solely attributable to an error on the part of the Commonwealth.

15.     Section 1237AAD is another provision that allows for the waiver of the right to recover a debt due to the Commonwealth.  Section 1237AAD applies where there are special circumstances in a case, other than financial hardship alone, which make it desirable to waive the debt.  The term special circumstances means circumstances that are “unusual, uncommon or exceptional” (see Re Beadle and Director-General of Social Security (1984) 6 ALD 1).

16.     The applicant is a married man with a family.  He is in the process of establishing a new business in partnership with his wife, and therefore has been suffering some financial hardship.  But financial hardship is not enough. I am not satisfied there are any other circumstances that could properly be described as “unusual, uncommon or exceptional” so as to warrant the exercise of the discretion to waive the right to recover the overpayment made to the applicant in the period 18 March 2002 to 28 August 2002. 

17.     I note however that the recovery of the debt in this case has been temporarily written off to allow the applicant time to organise his financial affairs and to develop his business.  That is appropriate.

Decision

18.     The Tribunal affirms the decision under review.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member

Signed:         Sarah Oliver
  Associate

Date of Hearing  21 August 2003 (at Gympie)
Date of Decision  31 October 2003

The Applicant appeared in person
For the Respondent                  Ms Wallis-Dunn, Departmental Advocate