Uranek and Secretary, Department of Social Services (Social services second review)

[2015] AATA 918

Uranek and Secretary, Department of Social Services (Social services second review) [2015] AATA 918 (26 October 2015)

Division

GENERAL DIVISION

File Number(s)

2015/1437

2015/2917

Re

Lucas Uranek

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal	Dr P McDermott RFD, Senior Member
Date	26 October 2015
Date of written reasons	27 November 2015
Place	Brisbane

In respect of applications 2015/2917 and 2015/1437 the Tribunal affirms the decisions under review.

.............................[Sgd]...........................................

Dr P McDermott RFD, Senior Member

CATCHWORDS

SOCIAL SECURITY – benefits and allowances – youth allowance – overpayment – period of absence – not for medical treatment or acute family crisis – overpayment of youth allowance – whether applicant undertaking full-time study – question of fact – whether special circumstances – no special circumstances found – decisions under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth) ss 541, 541B, 1217, 1237A, 1237AAD

Social Security (Administration) Act 1999 (Cth) s 68

CASES

Secretary, Department of Social Security v Hales (1998) 82 FCR 154

REASONS FOR DECISION

Dr P McDermott RFD, Senior Member

27 November 2015

ORAL DECISION OF SENIOR MEMBER  [11.23 am]

1. SENIOR MEMBER: There are two applications by Mr Lucas Uranek who is seeking review of two decisions.

   APPLICATION NO. 2015/2917

2. Application No. 2015/2917 concerns the issue of portability. On 19 January 2015 Centrelink made a decision to suspend payments of Youth Allowance during a period of absence outside of Australia. This decision was affirmed by an authorised review officer on 19 March 2015 and by the Social Security Appeals Tribunal on 5 May 2015.

3. The application concerns the travel by Mr Uranek to the United States of America on a holiday. He states that he was advised by the department that he would continue to be paid Youth Allowance whilst he was overseas. His claim has been investigated by an authorised review officer who made the following notes:

   Cust called back and explained that he had gone into the local office to ask about his payment if he travels O/S and was told it would continue to be paid. He again went in on 19/01/2015 and was told the same thing. I explained I don’t understand how he was told on 19/01/2015 that his [sic] would continue to be paid YAL whilst O/S because when travel details coded onto his record there is an automatic process where the system determines whether payment is payable and this script determined it would not be paid and the CSO would have advised him of this at the time. Cust then said he would not have booked the flights if he had known he would not be paid. I asked when he booked the flights and he said 10/01/2015. I asked if he was working and he said he wasn’t and I asked how he paid for the flights and he said his uncle paid for them who lives in America. He was told that as it was the Uni break he would be eligible for payment. I explained that from 1/01/2015 the legislation had changed and that if the travel is not for an approved reason then it is not portable.[1]

   [1] Exhibit B, f 19.

4. This application raises the consideration of s 1217 of the Social Security Act 1991 (Cth) (“the Act”) which provides that a person receiving Youth Allowance, and undertaking full-time study can have an absence of up to six weeks only if the person is seeking eligible medical treatment overseas or attending an acute family crisis.[2] Mr Uranek is a full-time university student in his third year of studies, and was a full-time student at the time of the decsision. Mr Uranek to his credit has been honest in stating that he did not have any of those reasons for absence which are specified. He informed this Tribunal and his father informed Social Security Appeals Tribunal that the reason he went overseas was to have a holiday in the United States of America. I find in reliance on the records of the Department of Immigration and Border Protection that are in evidence that the applicant was absent from Australia from 27 January 2015 until 14 February 2015.[3] I also find that during that period of absence he was on holiday. When Mr Uranek was absent from 27 January 2015 until 14 February 2015, he was not eligible for the payment of Youth Allowance.

   [2] Social Security Act 1991 (Cth) s 1217(4) Item 13 Columns 1-5.

   [3] Exhibit B, f 25.

5. In determining Application No 2015/2917, I affirm the decision under review. However, I recognise that on 1 January 2015 there was a change in the law and Mr Uranek states that he was given incorrect advice. If this was the case, then Mr Uranek can make an application for compensation for defective administration under the CDDA Scheme.

   APPLICATION NO 2015/1437

6. Application No 2015/1437 concerns a decision of 14 May 2014 to suspend payment of Youth Allowance for the period from the 16 June 2012 to the 24 February 2013. A letter dated 14 May 2014 advised the applicant a decision had been made to raise a debt of $9,052.14. This decision was affirmed by an authorised review officer on 29 July 2014 and by the Social Security Appeals Tribunal on 23 February 2015.

7. The crucial issue raised in this application concerns when Mr Uranek ceased school in 2012. The history of the matter is that in 2011 Mr Uranek, then in Year 12, graduated from a college, but despite receiving high school results there was an unsuccessful university entry. He wanted to gain entry to study medicine at the University of Queensland and this was under the provisional entry medicine program. But due to a low UMAT test, he failed to secure a position. Because the program is only offered to graduates of high school, Mr Uranek wanted to enrol in high school to again complete Year 12 in order to improve his score. He made applications to enrol in four high schools. He was accepted into Kenmore State High School after Mr Uranek was unsuccessful in enrolling in three other schools. The applicant says that in 2012 there was a change to provisional entry to a University course in medicine whereby there was a new requirement to complete an undergraduate degree prior to entry. It is not clear when in 2012 this change was introduced but it appears to have motivated the decision of Mr Uranek to leave school in 2012 as he stated “I decided to drop out of school, as I now had nothing to gain from graduating”.[4] It is not plausible that he continued to attend school after learning of the change.

   [4] Exhibit A f 35.

8. There is a conflict of evidence before me as to when in 2012 Mr Uranek left Kenmore State High School. In a letter that he wrote he stated that he remained there until the end of October, or the start of November 2012.[5] In evidence before this Tribunal, he was quite frank in stating that he did not remember the date when he left school although he thought it could have been between September and November 2012. I must resolve the case on the basis of the most reliable evidence before this Tribunal. Mr Uranek has not been able to provide me with an actual date when he claimed that he ceased attending school. A certificate from the acting principal of the school dated the 3 March 2014 is in evidence and that document contains the statement that Lucas Uranek was enrolled in Year 12 at Kenmore State High School from 14 February 2012 to 15 June 2012.[6] Enquiries by the Department have verified the correctness of the date of his last school attendance in 2012 as being 15 June 2012.[7] The evidence before me is that two persons from the school have confirmed that in 2012 Mr Uranek last attended school on 15 June 2012: their evidence has not been challenged by requiring attendance for cross-examination. The certificate from the school is not contradicted by any cogent evidence. There is no contradictory evidence from any teachers or any assessment reports, if any reports were available.

   [5] Ibid.

   [6] Exhibit A, f 31.

   [7] Ibid f 125.

9. Important evidence in my opinion is the report from Dr Sybrand Van Schalkwyk dated 5 June 2012 in which Dr Van Schalkwyk certifies that she saw Mr Uaranek on that day. Her report contains the following comments:

   I hereby certify that I have seen Luke today.

   He tells me he is a bit frustrated with school and find [sic] it hard to adapt with new peers etc.

   In my opinion, he is uncertain about this year and feels a bit depressed at times because of that.

10. And she states:

    He may need some time out and I suggested an appointment with his regular doctor Dr S. Ryan to discuss this further.[8]

    [8] Ibid f 30

11. That report is contemporaneous evidence which indicates that it was then thought that the applicant may have to leave school, because in that letter Dr Van Schalkwyk states that “[h]e may need some time out”. Because of those remarks I think that it is more probable than not that the record of attendance from the Kenmore High School that is in evidence – that Mr Uranek last attended school on the 15 June 2012 – is in fact correct. This date is within a fortnight of his appointment with Dr Van Schalkwyk

12. There is one item of evidence that has been provided to this Tribunal by Mr Uranek. It is a letter from Mr Robert Leach. What the letter does is it confirms that on 16 May 2012 and 23 May 2012 Mr Uranek was provided assistance for school expenses. I am prepared to accept that what Mr Robert Leach states in that letter is correct, even though it is not signed and it is not on official letterhead. However, that letter is not of any probative value as to whether Mr Uranek actually stayed at school after 15 June 2012.

13. I rely upon the school certificate and find that Mr Uranek last attended school on 15 June 2012. I do not accept his explanation that he attended school after that date, his account was vague and he was not able to tell me the date of his last school attendance in 2012. I therefore consider that from 16 June 2012 he was not eligible for Youth Allowance because he did not satisfy the activity test in s 541 of the Act by undertaking full-time study. He did not from 16 June 2012 satisfy s 541B(1)(a)(i) of the Act in that he was not enrolled in a course of education at an educational institution. He also could not from that date be regarded as satisfying s 541B(1)(b) by undertaking at least 75% of the normal amount of full time study. He became eligible for Youth Allowance from 25 February 2013 when he was attending University.

14. I consider that the decision on 14 May 2014 to raise the debt was the correct decision to make. French J explained in Secretary, Department of Social Security v Hales (1998) 82 FCR 154 at 155: “[t]he taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to receive will be recovered ”. However, that is not the end of the matter, I have to consider whether the debt should be waived.

15. Section 1237A of the Act is inapplicable as there is no administrative error. Section 1237AAD of the Act is relied upon by the applicant on the ground of special circumstances. One of the submissions that is made by the Secretary is that Section 1237AAD of the Act is inapplicable because the applicant was aware of the requirement to inform the department of any changes in his enrolment. The applicant received numerous information notices under social security law from 1 November 2011 onwards which required the applicant to advise the Department of any changes in his circumstances including whether he was absent from school.[9] I have to consider whether Mr Uranek knowingly failed to comply with the provision of the Act. The notices were sent to the Noosa Heads address of his parents while he was living in Brisbane with his older brother and sister. I am prepared to give Mr Uranek the benefit of the doubt and rule that he did not knowingly fail to comply with a provision of the Act. I must consider whether there are special circumstances (other than financial hardship alone) that make it desirable to waive. Mr Uranek claims financial hardship; I accept that as a student his finances have been strained. But there is no evidence of financial hardship by way of a statement of income, expenses or assets.

    [9] Exhibit A, ff 43-90; see also: Social Security (Administration) Act 1999 s 68(2).

16. Even if there were financial hardship, there are no special circumstances (other than financial hardship alone) that make it desirable to waive the debt. Whilst I accept that Mr Uranek was in June 2012 feeling a bit depressed, there is no evidence of the diagnosis of a depression condition. Mr Uranek did not want to seek psychiatric assistance because he thought it could adversely affect his ability to practise medicine. His father told the Social Security Appeals Tribunal that the applicant was sick for only a short time in June 2012 when his parents were overseas. I accept that Mr Uranek was sick for a short time in June 2012.

17. Section 1237AAD of the Act is a discretionary provision and I do not consider that it is appropriate to exercise the discretion to waive the debt where the applicant was absent from school for a long period without informing the Department.

18. If Mr Uranek believes that he did receive incorrect advice from the Department, he does have the right to pursue compensation under the CDDA Scheme.

19. I affirm the decision under review.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member

.........................[Sgd]...............................................

Associate

Dated 27 November 2015

Date(s) of hearing	26 October 2015
Applicant	In person
Solicitors for the Respondent	Department of Human Services