Twigg and Secretary, Department of Family and Community Services

[2002] AATA 1135

DECISION AND REASONS FOR DECISION [2002] AATA 1135

ADMINISTRATIVE APPEALS TRIBUNAL      )
  )           No Q2002/397
GENERAL ADMINISTRATIVE DIVISION          )          
           Re      AARON JEFFREY TWIGG           
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Mr R G Kenny, Member    

Date5 November 2002

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.

..................(Sgd).......................
  R G Kenny
  Member
CATCHWORDS
SOCIAL SECURITY – whether applicant undertaking qualifying study – whether austudy debt arose – whether debt may be waived - need for a claim for social security payment - hearing in the absence of the parties
Administrative Appeals Tribunal Act 1975 s 34B
Social Security Act 1991 ss 568, 569(1), 569A, 1223, 1237A, 1237AAD
Social Security (Administration) Act 1999 ss 11, 16
Beadle v Director-General of Social Security (1985) 60 ALR 225
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Re Beadle and Director-General of Social Security (1984) 1 AAR 362
Secretary, Department of Social Security v Hales [1998] FCA 219

REASONS FOR DECISION

5 November 2002    Mr R G Kenny, Member                

Application

1. Aaron Jeffrey Twigg (the applicant) received austudy payments in accordance with the terms of the Social Security Act 1991 (the Act) from March to July 2001 and, on 7 November 2001, a Centrelink delegate, on behalf of the Secretary of the Department of Family and Community Services (the respondent), determined that the applicant was not qualified to receive austudy, that he had been overpaid an amount of $2,289.52 in the period from 5 March 2001 until 29 July 2001 and that this was a debt owed by him to the Commonwealth which could not be waived. That decision was affirmed by an authorised review officer on 3 January 2002 and, in turn, by the Social Security Appeals Tribunal (SSAT) on 4 April 2002. On 3 May 2002, an application was received by the Administrative Appeals Tribunal (the Tribunal) for further review of that decision.

2. In evidence were the T documents (T1–T19) and supplementary documents (S1–S10) compiled by the respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975. Also in evidence was a 2001 Enrolment Form for the University of Queensland, certified as a copy of the original on 4 June 2002 (exhibit 1), and statements from the applicant and the respondent in which they consented to the matter proceeding without a hearing.

3. In relation to a hearing in the absence of the parties, section 34B of the Administrative Appeals Tribunal Act 1975 reads:

   "34B  If:

   (a) it appears to the Tribunal that the issues for determination on the review of a decision can be adequately determined in the absence of the parties; and

   (b) the parties consent to the review being determined without a hearing;

   the Tribunal may review the decision by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing."

1. In accordance with the terms of that provision and being satisfied that the review can be determined adequately in the absence of the parties, I considered that this was an appropriate course and proceeded, accordingly.
   Evidence

2. The 2001 Enrolment Form (exhibit 1) was received by the University of Queensland on 5 January 2001 and indicates that the applicant intended to enrol in the Bachelor of Science program in that year and to undertake four courses in each semester. The courses nominated for first semester were PHYS 1001, MATH 1050, PSYC 1020 and PSYC 1030. The courses nominated for second semester were MATH 1051, PHYS 2081, PHYS 1002 and LAWS 5140. A letter, dated 5 January 2001 and stamped as having been received by a Centrelink office on the same date, from Tricia Whiteford from the Student Centre at the University of Queensland (see T4 at 38) reads:

   "TO WHOM IT MAY CONCERN

   This is to confirm that Aaron Twigg student number 33033127 date of birth 1/2/71 is currently enrolled as a full-time student in a Bachelor of Science degree at the University of Queensland.
   Classes commence on 5 March 2001. Aaron is expected to complete his course by 31/12/2003."

3. An Enrolment Status Report was completed in relation to the applicant on 24 October 2001 (see T6 at 46) by the Client Service Officer at the University of Queensland and it records the applicant as not being enrolled in first semester 2001 but as being enrolled in the second semester 2001 in the first year of the Bachelor of Science degree program.

4. In various statements made by the applicant, he has conceded that he was not formally enrolled in first semester 2001 and that this was because there were outstanding loans that were due to be repaid by him to the University. A notation dated 21 February 2001 appears on the 2001 Enrolment Form. It refers to the first semester courses and reads: "Hold on student's record and not process". The applicant said that he was able to repay the loans in July 2001 and, therefore, was permitted to enrol in second semester 2001.

5. The applicant said that, despite not being formally enrolled, he attended classes in first semester and sat for mid-semester examinations in his courses. In an e-mail message dated 19 February 2002 (see T14 at 60), the applicant said that he decided "by about week 11 to week 13" that he would not continue with the course and "he then proceeded to look for work". He then said that he enrolled himself with several job network agencies in the area around Stones Corner in Brisbane as well as in Toowoomba where he hoped to find work. He also said that he contacted many employers in an endeavour to get work but did not claim unemployment benefits from Centrelink. In a further letter (see T16 at 65), he said:

   "I was always considering not continuing with the course and was continuing to send faxes to employers in that regard. I had decided not to continue with my second degree around about the time of final exams. Centrelink staff at Stones Corner may recall seeing me looking for work at that time.
   I was continuing to receive advice from the patent attorneys' board and later decided to return for second semester in which time I had fully paid off my loans with the University and was able to officially enrol then.
   I did not see any point in applying for unemployment benefits in the small period before changing my mind. That would have made work both for Centrelink and myself. Had I not decided to return to study I would have promptly applied for unemployment as this would have opened my way to the job network."

6. Also in evidence was a copy of the applicant's examination answer sheets relating to the mid semester examination in April 2001 for one of the courses in which the applicant attended classes in first semester 2001.

7. The documents in S1-S10 comprise Centrelink records including a request by Centrelink to the applicant for him to advise Centrelink of his enrolment status at the University (see S3) as well as file notations that this had not been done until October 2001 (see S8 and S9). The documents also include copies of notices to the applicant advising him about his austudy payments and requiring him to tell Centrelink if there was any change to whether or not he was studying on a full-time basis (see S5-S7).
   Issues and Legislation

8. The qualifying criteria for receiving austudy payments are set out in the Act and, in so far as these are relevant, the provisions read:

   "568 Subject to this Subdivision, a person is qualified for an austudy payment in respect of a period if, throughout the period:

   (a) the person satisfies the activity test (see Subdivision B); and

   (b) the person is of austudy age (see Subdivision C); and

   (c) the person is an Australian resident.

   569(1) Subject to subsection (2), 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).
   …
   569A  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)."

12. The first issue for determination is whether the applicant meets the qualifying criteria for austudy payments to be made to him in first semester 2001. In the event that he was not so qualified, it then must be determined whether or not there is a debt owed by him to the Commonwealth. In so far as incurring a debt is concerned, sub-section 1223(1) of the Act reads:

"1223(1) 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."

13. In this case, the applicant has submitted that there was fault on the part of Centrelink in its making of austudy payments to him. Provision is made for the waiver of a debt in the case of administrative error in section 1237A of the Act which reads:

"1237A(1) Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.

1237A(1A) Subsection (1) only applies if:

(a) the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or

(b) if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;

whichever is the later."

14. Further provision is made in section 1237AAD of the Act for waiver of a debt in special circumstances. It reads:

"1237AAD  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 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."

Consideration
15. The applicant has not disputed the matter of whether or not he was formally enrolled in the Bachelor of Science degree program at the University of Queensland in first semester 2001. The Enrolment Form (exhibit 1) indicates that he attempted to enrol and the letter from Tricia Whiteford from the Student Centre at the University of Queensland (see T4 at 38) shows that he was accepted by the University as having been enrolled as at 5 January 2001. However, the notation on the Enrolment Form indicates that his enrolment was not to be processed due to the outstanding loans. That notation is dated 21 February 2001. The Enrolment Status Report (see T6 at 46) confirms that he was not enrolled in first semester. On that evidence, I am satisfied that, in first semester 2001, he was not enrolled in a course of education as required by sub-paragraph 569A(a)(i) of the Act and that he had not previously been enrolled in that course of education for the purposes of sub-paragraphs 569A(a)(ii) and (iii) of the Act. This means that the applicant was not undertaking qualifying study as required by section 569A of the Act and that he did not satisfy the activity test as required by sub-section 569(1) of the Act. I am satisfied that the applicant was not qualified for austudy payments at any time in first semester 2001.
16. Before leaving the issue of whether the applicant was undertaking qualifying study, I note the terms of paragraph 569A(a)(ii) of the Act which has application where a person was enrolled at some time and then, for some reason, lost that status. In the event that the applicant can be considered to have been enrolled from the time of lodgement of his Enrolment Form, as advised by Tricia Whiteford from the Student Centre, until 21 February 2001, when the processing of his enrolment was put on "hold", he would satisfy the first elements of that provision. However, to be held to have been undertaking qualifying study under that provision, it must also be the case that he always intended to re-enrol in the course when re-enrolments in the course were next accepted. The applicant's evidence is that he made a decision towards the end of the semester not to continue with the degree. Therefore, I am satisfied that he had not "always intended" to re-enrol in the degree. Accordingly, even on that view of the evidence, he was not undertaking qualifying study and did not satisfy the activity test.
17. It is not disputed that the applicant received austudy payments in the amount of $2,289.52 during the period from 5 March until 29 July 2001. It is also not disputed that these are social security payments as that term is defined in section 23 of the Act. As he was not qualified to receive those payments, the amount of $2,289.52 is a debt due by him to the Commonwealth in accordance with the terms of sub-section 1223(1) of the Act.
18. The initial application for austudy was not in evidence but the applicant has said that he advised Centrelink of his enrolment status at the University. The only document in evidence which advised Centrelink of the applicant's status is the letter from Tricia Whiteford from the Student Centre at the University of Queensland (see T4 at 38). As noted above, it declares the applicant to have been enrolled at that time. I am satisfied that the applicant did not advise Centrelink of his altered status at any time after 5 January 2001, when that document was received at a Centrelink office, and before 29 July 2001. This means that the applicant was responsible, at least in part, for the commencement and continuation of the payments to him and I am satisfied that those payments were not made solely through error on the part of Centrelink. Therefore, the debt can not be waived under section 1237A of the Act.
19. Reference was made above to section 1237AAD of the Act to waiver in the case of special circumstances. The concept of special circumstances has been the subject of consideration in a range of legislative provisions relating to social security law: see Beadle v Director-General of Social Security (1985) 60 ALR 225 and Secretary, Department of Social Security v Hales [1998] FCA 219.In the latter case, French J referred to the evident purpose of the waiver provision as being:

"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 an narrow or artificial construction upon the words."

20. The Act provides no guidance as to the meaning of the term special circumstances. The Full Federal Court in Beadle v Director-General of Social Security (above) stated that it was not possible to lay down precise limits or precise rules for the meaning of the term. The Court indicated that this would depend upon the circumstances of each particular case but commented that, even though the term lacks precision, it was sufficiently understood "not to require judicial gloss" (at 228). There, the Court affirmed the decision of the Tribunal (Re Beadle and Director-General of Social Security(1984) 1 AAR 362) where (at 364) the Tribunal had acknowledged that the term was "incapable of precise or exhaustive definition" and that, to be special, the circumstances "must have a particular quality of unusualness that permits them to be described as special".
21. In Groth v Secretary, Department of Social Security (1995) 40 ALD 541, Kiefel J, after referring to the Federal Court's decision in Beadle's case, observed (at 545) that special circumstances:

"would require something to distinguish. [the].. case from others, to take it out of the usual or ordinary case. … It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary."

22. There is no evidence before the Tribunal of any circumstances which would enable the debt to be waived on the application of section 1237AAD of the Act.
23. The applicant submitted that, if he was not qualified for austudy, he would have been qualified to receive some other form of social security payment in the form of "unemployment benefits". I make no findings on whether or not the applicant was qualified to receive any such benefit or allowance. However, in order for any such benefit or allowance to be paid, the payability provisions as set out in the Social Security (Administration) Act1999 (the Administration Act) would need to be complied with. Sub-section 11(1) of the Administration Act gives the general rule for the need to make a claim. The provision reads:

"(1) Subject to subsection (2) and Subdivision B, a person who wants to be granted:

(a) a social security payment; or

(b) a concession card;

must make a claim for the payment or card in accordance with this Division."

24. Section 16 of the Administration Act sets out the manner in which a claim is to be made. It reads:

"(1) A person makes a claim for a social security payment or a concession card:

(a) by lodging a written claim for the payment or card; or

(b)by making the claim in accordance with subsection (7).

(2) A written claim for the purpose of subsection (1) for one social security payment or for a concession card must be in accordance with a form approved by the Secretary.

(3) Two or more written claims by the same person may be combined in one claim. Such a claim must be made in accordance with a form approved by the Secretary for the purposes of this subsection.

(4) A written claim is lodged by being delivered:

(a) to a person apparently performing duties at a place approved for the purpose by the Secretary; or

(b) to a person approved for the purpose by the Secretary; or

(c) in a manner, and to a place, approved for the purpose by the Secretary.

(5) Subject to subsection (6), a place or person approved for the purposes of subsection (4) must be a place or person in Australia.

(6) The Secretary may approve a place or person outside Australia for the purposes of subsection (4) for the lodgment of claims made under a scheduled international social security agreement.

(7) A person may make a claim in a manner approved by the Secretary for the purposes of this subsection.

(8) The power of the Secretary to make an approval under subsection (7) is not limited by any other provision of this section."

25. In this case, the applicant did not lodge a claim for any other form of social security payment in accordance with those provisions. Indeed, in his evidence, he stated that he chose not to do so (see T16 at 66). In the absence of a claim, I am satisfied that no other form of social security payment could be made to the applicant during the period in which he was paid austudy in first semester 2001.
Decision
26. The decision under review is affirmed.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member

Signed:         Sarah Oliver
  Associate

This Matter was Heard on the Papers
Date of Decision  5 November 2002

The Applicant Represented Himself
Solicitor for the Respondent    Mr T Ffrench, Departmental Advocate