Ubachs and Secretary to the Department of Family and Community Se Rvices

[2003] AATA 1040

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1040

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2003/446

GENERAL ADMINISTRATIVE  DIVISION

Re:         DANNY UBACHS

Applicant

And:SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       M. J. Carstairs, Member

Date:             14 October 2003

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) M J Carstairs

Member

SOCIAL SECURITY ‑ austudy ‑ Masters degree ‑ whether debt should be waived

Social Security Act 1991 s568, 569B, 1223(1),1237A, 1237AAD

Student Assistance Act 1973 s3(1), s5D(1)

Re Beadle and Director‑General of Social Security (1984) 6 ALD 1
Groth v Secretary, Department of Social Security (1996) 40 ALD 541
Secretary, Department of Family and Community Services and Hill [2003] AATA 545

Director‑General of Social Services vHales (1983) 47 ALR 281

REASONS FOR DECISION

14 October 2003  M. J. Carstairs, Member

1.      This is an application by Danny Ubachs (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) made on 18 March 2003.  On 19 August 2002 a Centrelink delegate of the Secretary to the Department of Family and Community Services (the respondent) decided to raise and recover a debt of $4708.69, being an overpayment of austudy from 23 November 2001 to 30 June 2002.  On 25 October 2002 an authorised review officer varied the decision to raise and recover an overpayment of $3081.65 for the period 8 February to 30 June 2003.  The SSAT affirmed the decision of the authorised review officer.

2.      At the hearing the applicant represented himself.  Ms K. Navarro, a Centrelink advocate, represented the respondent.

3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act1975, together with exhibits marked A1 – A3 for the applicant and R1 – R3 for the respondent.

BACKGROUND

4.      The applicant was born on 20 December 1964.  In 2001 he received austudy for a Bachelor of Social Science degree he was undertaking, which he completed that year.  On 8 February 2002 he was offered entry to a Masters of Social Science (International Development) (the Masters degree).  He continued to receive austudy while enrolled in the Masters degree, until 30 June 2002.  The applicant sought review of the decision to raise and recover the debt by applying to the Tribunal on 24 April 2003.

EVIDENCE

5.      The applicant told the Tribunal that he did not dispute that there was no entitlement to austudy while studying for the Masters degree.  In his statement of facts and contentions (Exhibit A1) he stated that he was concerned that there were a number of inaccuracies in the respondent’s findings in regard to his case.  He said that Centrelink were alleging that he was negligent about not advising of his enrolment in the Masters degree.  However, he said he did not receive two Centrelink letters dated 10 December 2001 (T5) and 31 January 2001 (T7).  Further, he was not in a position to advise Centrelink about completing his degree at the end of 2001, as his results were not available until early 2002.

6.      The applicant said that he has always been honest and pointed to the fact that it was his attendance at a Centrelink office in July 2003 that alerted the respondent to his enrolment in the Masters degree.  He said his failure to advise Centrelink at the start of the year was not intentional.  He said that his activity was focussed on his studies and he believed that if he were not eligible for a payment Centrelink would cease the payment.  The applicant said Centrelink bears some responsibility for the debt, because their notices do not sufficiently alert a person to their obligations.  He also said Centrelink should have stopped paying him at the end of 2001, as he had told Centrelink at the start of 2001 that he had only one year remaining in his undergraduate degree.

7.      In regard to his current circumstances, the applicant said that he has repaid $165.06 of the debt, leaving a balance of $2916.59.  He said that he has occasional work window cleaning and hopes that this will increase.  His earnings are variable; he estimated $200‑$300 per week.  He pays $80 per fortnight in shared rental accommodation.  He says he lives simply and limits his expenses, rarely using his car.  He said that he has no health problems.  He said that he prefers to be self‑sufficient rather than claim a Centrelink payment because his experience with the austudy debt has left him with little confidence in Centrelink.  The applicant told the Tribunal that he would cope with having to repay the debt, but that it would be difficult.

CONSIDERATION OF THE ISSUES

8.      Subsections 3(1) and 5D(1) of the Student Assistance Act 1973 (the Student Assistance Act) provide that the Minister may, by means of the Ministerial Determination of Education Institutions and Courses 1992/2 (the determination), determine what is an approved course for the purpose of payments to students.  The Explanatory Statement in respect of the determination which commenced on 1 January 2000, states that since 1 July 1998 the Social Security Act 1991 (the Act) has required that, to qualify for austudy a person must be enrolled in and undertaking study at an education institution and in a course determined by the Minister to be an approved course under the Student Assistance Act.

9.      Paragraph 7 of the determination states:

7.(1)    For the purposes of the Act, (that is, the Student Assistance Act) a course specified in Column 1 of Schedule 2 and conducted by an education institution specified for that course in Column 2 of Schedule 2 is a tertiary course.

(2)      For the purposes of the Act, no course accredited at Masters or Doctoral level offered by a higher education institution is a tertiary course unless expressly specified in Schedule 2.

10.     Ms Navarro submitted that the Masters degree is not expressly specified in Schedule 2 of the determination.  She submitted further that Schedule 2 expressly excludes the year or years relating to study at the Masters level.  She submitted that the applicant could have enrolled in a graduate diploma.  However, he chose to enrol in the higher level program.  She submitted that the applicant failed to advise Centrelink of the change to his enrolment, as he was required to do under the Act.  She referred to a notice that he was sent on 31 January 2002, which set out his notification obligations.

11. In reaching its decision the Tribunal takes into account the written material, the oral evidence and the submissions made at the hearing. Section 568 of the Act, provides that a person may qualify for austudy if, amongst other things, they satisfy the activity test. The activity test can be satisfied by enrolling in an approved course of education or study as defined in s569B. Section 569B then provides as follows:

569B  For the purposes of paragraph 569A(b), a course is an approved course of education or study if it is a course that the Employment Minister has determined, under section 5D of the Student Assistance Act 1973, to be a secondary course or a tertiary course for the purposes of that Act.

12.     The Tribunal accepts the submission of the respondent that a Masters degree is not an approved course as set out in the determination that was in place at the time of the applicant’s enrolment in 2002.  The applicant did not dispute this.  The interpretation to be applied to the determination has recently been considered by the Tribunal in Secretary, Department of Family and Community Services and Hill [2003] AATA 545 in the context of youth allowance. However, the provisions for youth allowance paid to students are similar to those for austudy. In Hill the Tribunal said that the policy behind the determination was that although some forms of postgraduate study will be approved, it will only be in limited circumstances that study at the Masters level will be and then it is only if expressly specified in the relevant Schedule.

13. As the Masters degree was not approved, the applicant was not entitled to receive austudy in 2002. Section 1223(1) of the Act provides:

1223(1)  [Payments made to a person] 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.

14. The Tribunal finds that the applicant comes within s1223(1)(b) of the Act as a person who obtained a benefit to which he was not entitled. As the applicant had lost qualification for the payment, the question of not receiving notices sent in December 2002 and January 2003 does not affect whether a debt may be raised. The Tribunal is reasonably satisfied that the period and amount of the debt have been correctly calculated.

15.     On the question of recovery of the debt, s1237AAD of the Act provides:

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 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.

16.     There are limited circumstances where the discretion under s1237AAD of the Act is to be exercised.  The circumstances must be unusual, uncommon or exceptional (Re Beadle and Director‑General of Social Security (1984) 6 ALD 1; Groth v Secretary, Department of Social Security (1996) 40 ALD 541).

17.     The applicant is living on a limited and variable income.  However, he has no other financial commitments and did not cite any exceptional circumstances that would warrant a favourable exercise of the discretion.  The Tribunal must balance the several factors that arise in cases where people seek relief from the repayment of monies owed to the Commonwealth.  These include the fact that they have received public moneys to which they were not entitled, the circumstances in which the debt arose and the prospects of recovery in the context of the person’s overall financial circumstances: Director‑General of Social Services vHales (1983) 47 ALR 281. Taking into account the applicant's overall circumstances, the Tribunal did not consider that the basis of waiver was made out. It would appear from the applicant’s circumstances that a low rate of repayment will need to be negotiated by Centrelink.

18.     The applicant referred to the notices sent by Centrelink being inadequate to sufficiently alert recipients to their responsibility to advise matters such as a change in enrolment.  He also said that he did not receive the notices that were said to have been sent in December 2001 and January 2002.  However, the Tribunal was satisfied that the payment of austudy to the applicant in 2002 did not occur solely due to an administrative error made by the Commonwealth, so that s1237A of the Act, which allows another basis for waiver of a debt, does not arise for consideration.

19.     For these reasons the Tribunal affirms the decision under review.

DECISION

20.     The Tribunal affirms the decision under review.

I certify that the preceding twenty [20] paragraphs are a true copy of the reasons for the decision of

M. J. Carstairs, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of hearing:  10 October 2003
Date of decision:  14 October 2003
Advocate for applicant:                Self‑represented

Advocate for respondent:            Ms K. Navarro, Centrelink