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

[2021] AATA 1505

Wain and Secretary, Department of Social Services (Social services second review) [2021] AATA 1505 (27 May 2021)

Division:GENERAL DIVISION

File Number:          2019/6342

Re:Mr Thomas Wain

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Ms A E Burke AO, Member

Date:27 May 2021

Place:Melbourne

The Tribunal sets aside the decision under review and remits the matter to the Respondent with the following findings:

-a portion of Mr Wain’s debt is attributable solely to administrative error during the period 6 February 2017 to 23 April 2017 and should be waived; and

-Mr Wain’s situation was out of the ordinary and these special circumstances (other than financial hardship alone) made it desirable to waive the reminder of his debt.

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

Ms A E Burke AO, Member

Catchwords

SOCIAL SECURITY – Austudy Debt – overpayment – debt due to the Commonwealth – not studying full time – ceased studying – recovery of debt should be written off or waived – debt not attributable solely to error made by Centrelink – whether applicant knowingly made false statements or gave false representation in claims – notional entitlement – special circumstances found – decision under review remitted for waiver of debt due to administrative error in part and special circumstances

Legislation

Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security (Administration) Act 1999

Cases
Re Anderson and Secretary, Department of Families and Community Services (2002) 69 ALD 494
Ardill and Secretary, Department of Family and Community Services [2000] AATA 274
Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435
Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114; (2007) 94 ALD 693
Dranichnikov v Centrelink [2003] FCAFC 133; (2003) 75 ALD 134
Groth and Secretary, Department of Social Security (1995) 40 ALD 541
Re Ivovic and Director-General of Social Services [1981] AATA 57
Jazazievska v Secretary, Department of Families and Community Services (2000) 65 ALD 424
Kalpouzos and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 91
Mirza and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1309
Nikopoulos and Secretary, Department of Social Services (Social services second review) [2015] AATA 762
Oberhardt v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1923
Secretary, Department of Families and Community Services and Reardon (2002) 67 ALD 420
Ryde v Secretary, Department of Family and Community Services [2005] FCA 866
Secretary, Department of Education, Employment, Training & Youth Affairs v Prince [1997] FCA 1565
Secretary, Department of Social Security v Hales [1998] FCA 219
Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190; (2003) 132 FCR 126
Ward and Secretary, Department of Family and Community Services [2000] AATA 212

Secondary Materials

Guide to Social Security Law, Department of Social Services

REASONS FOR DECISION

Ms A E Burke AO, Member

27 May 2021

1. Mr Wain (the Applicant) sought a second-tier review of the decisions made by the Secretary of the Department of Social Services (the Respondent) that he had an Austudy debt of $29,501.16 for the period from 6 February 2017 to 19 November 2018.

2. On 7 January 2019, the Department of Human Services – now Services Australia (Centrelink) – raised a debt of $29,501.16 against Mr Wain as he had been paid Austudy he was not entitled to receive because he was not a full-time student from 6 February 2017 to 19 November 2018.

3. The application was heard on 21 January 2021 by telephone. Mr Wain was self-represented and Mr Cameron Munro, Senior Government Lawyer in Services Australia appeared for the Respondent. Although, at the conclusion of the hearing, the Tribunal allowed Mr Wain additional time to provide any further information, no further material has been provided to the Tribunal.

   BACKGROUND

4. Mr Wain is 33 years of age and is currently in receipt of the JobSeeker payment. He has completed Year 12 and undertaken an advanced diploma in film and television. Mr Wain had previously worked as a senior administrative officer, records officer and customer service officer for nine years, last working on a full-time basis in 2013 when his contract ended. Mr Wain had been in receipt of Newstart Allowance (NSA) until he was granted Austudy payment in 2016. Mr Wain’s Centrelink records indicate his work capacity had been impacted by his anxiety, mood and substance abuse. Numerous medical certificates indicate Mr Wain is suffering from chronic back pain, depression, generalised anxiety disorder (GAD), post-traumatic stress disorder (PTSD) and substance abuse.

5. On 2 August 2016, Mr Wain applied for Austudy as he had enrolled in an Advanced Diploma of Professional Screenwriting at RMIT University (RMIT), advising the course dates were

   
   

   4 July 2016 to 12 December 2018, that prior to applying he was unemployed, had a disability suffering from depression, chronic back pain, PTSD and was not able to study the expected workload of his course. Mr Wain also lodged a medical certificate which was assessed by Centrelink as exempting Mr Wain from work from 27 July 2016 to 31 August 2016 due to incapacity for work.

6. On 14 August 2016, Doctor Zalman Rosenblum provided a medical certificate which indicated Mr Wain was temporarily incapacitated for all work from 1 June 2016 to 26 July 2016.

7. On 16 August 2016, Centrelink issued Mr Wain with a notice stating he had been granted Austudy payments from 2 August 2016. The notice stated:

   Your Austudy is based on you studying full-time at RMIT TAFE SECTOR, Tertiary Group C Course with the course ending on 12 December 2018. If your study load changes or if you cease study you should let us know within 14 days.

   Your medical certificate says you cannot work or study until 31 August 2016. We need a new medical certificate from you if you still unable to work or study after 31 August 2016. It will help with if your doctor completes a Centrelink Medical Certificate.

8. On 24 August 2016, Mr Wain contacted Centrelink as his NSA had been cancelled because he had failed to reengage with his job activity requirements. Mr Wain advised Centrelink at this time that he had deferred his studies as his medical condition prevented him from studying and he was advised he would need to reapply for NSA.

9. On 24 August 2016, Centrelink issued Mr Wain with a confirmation of intention to claim, as he had had contacted Centrelink on 24 August 2016 about his intention to claim Disability Support Pension (DSP), enclosing the relevant forms to make a valid claim.

10. On 21 September 2016, 14 February 2017, 15 March 2017, 30 March 2017, 30 July 2017, 14 August 2017, 23 August 2017, 3 September 2017, 12 September 2017, 12 October 2017, 30 October 2017, 31 October 2017, 2 November 2017, 10 November 2017, 9 December 2017, 12 December 2017, 15 December 2017, 17 December 2017, 26 January 2018, 14 March 2018, 9 May 2018, 28 May 2018, 6 June 2018, 9 July 2018, 22 July 2018, 22 August 2018, 26 August 2018, 28 August 2018 and 11 October 2018, Centrelink issued Mr Wain with Income Statements.

11. On 30 October 2016, 24 April 2017, 24 July 2017, 30 October 2017 and 7 February 2018, Mr Wain confirmed he was a full-time student at RMIT undertaking an Advanced Diploma of Professional Screenwriting with a start date of 4 July 2016 and an end date of 12 December 2018.

12. On 18 January 2017, Mr Wain applied for sickness benefits, advising he had deferred studies on 4 July 2016 as a result of illness and expected to recommence on 4 July 2021. On 14 February 2017, Centrelink reject Mr Wain’s claim for sickness allowance as he had not supplied the documentation requested.

13. On 19 March 2017, Dr Samuel Jaworowski provided a medical certificate which certified Mr Wain was unable to attend his course of studies during the first term due to a medical condition, describing it as a flare up of lower back pains, stress, adjustment disorder and depression.

14. On 11 April 2017, 22 July 2018 and 11 October 2018, Centrelink issued Mr Wain with Statements for Austudy, the letter stated:

    Please check the information on this statement carefully. If the details on this statement are correct there is no need for you to contact us. If your circumstances have changed please contact us within 14 days. This request is an information notice given under social security law. You may find it convenient to keep this statement for your records.

15. On 29 June 2017 and 5 June 2018, Dr Jaworowski referred Mr Wain to various specialists as he was presenting with long-term pain in his lower back.

16. On 27 July 2017, 5 April 2018, 26 April 2018 and 1 May 2018, Centrelink contacted Mr Wain about his eligibility for payments and a concession card, advising he needed to complete the relevant forms to have his claim for DSP assessed.

17. On 22 September 2017, Mr Wain contacted Centrelink to discuss options in respect of his studies. He was advised that if he reduces or withdraws from studies, he would need to test his eligibility for NSA whilst waiting for his claim for DSP to be assessed.

18. On 5 June 2018, Dr Jaworowski referred Mr Wain to psychiatrist Dr Michael Greenbaum for his opinion of and management of continuing anxiety and depression. The referral states: He was doing a course at RMIT University, but he has ceased this due to stress factors. He wonders re a Disability Support Pension.

19. On 26 September 2018, Dr Greenbaum advised Mr Wain’s general practitioner that:

    I first saw this man 1½ years ago. At that time he was needing assessment for his anxiety and depressive symptomology, and he was also applying to go on CentreLink permanent disability.

    I did not see him again until December 2017, and the presentation was similar.

    …

    Given the unchanging nature of his overall functioning since I saw him, I confirm that it is not likely that he will get back to useful work outside the CentreLink system and I support his application.

20. On 29 October 2018, Centrelink contacted Mr Wain requesting information, they advised they were writing to make sure that he was receiving the correct rate of payments. The letter informed Mr Wain that Centrelink undertook data matching internally with information received from a number of government agencies and third parties. Centrelink advised they needed to confirm that they had his correct details.

21. Centrelink file records indicated that Mr Wain was recorded as a full-time student in an Advanced Diploma of Professional Screenwriting at RMIT with a start date of 4 July 2016 and end date of 5 February 2017. The record notes verification of enrolment not required.

22. Centrelink file records dated 25 October 2018 indicated that matched data from RMIT which showed Mr Wain enrolled and commenced study on 3 July 2017, ended on 17 November 2017 and attended no actual hours.

23. On 15 November 2018, Centrelink contacted Mr Wain advising his Austudy would stop on 12 December 2018 as this was recorded as his last day of study.

24. On 20 November 2018, Centrelink contacted Mr Wain advising his Austudy had been suspended as he had not replied to earlier requests for information.

25. On 10 December 2018, Centrelink contacted Mr Wain advising his Austudy had been cancelled as he had not been studying full-time from 6 February 2017.

26. On 19 December 2018, Mr Wain applied for a DSP citing his chronic back pain, spinal disc herniation – lumbar, sciatica caused by lumbar disc bulges, general anxiety disorder, depression and PTSD.

27. On 23 December 2018, Dr Jaworowski provided a medical certificate which certified Mr Wain had been diagnosed for many years with chronic back pains with diminished spinal function and mental emotional functions [sic]. Dr Jaworowski noted Mr Wain’s symptoms were: extreme spinal dysfunction according to the Social Security Assessment for work related impairment for Disability Support Pension current strong pain killers & seeing pain clinic: extreme 30 points. Dr Jaworowski noted in a separate table severe panic and distress, extreme mental health dysfunction according to tables: 30 points

28. On 7 January 2019, Centrelink determined Mr Wain owed a debt to the Commonwealth of $29,501.16 for the period 6 February 2017 to 19 November 2018, as he was not enrolled in full-time study at RMIT and therefore not entitled to Austudy payments.

29. On 11 January 2019, Centrelink assessor HBU627 (an Occupational Therapist) assessed Mr Wain’s DSP claim as manifestly medically ineligible as his conditions were not considered fully diagnosed, treated or stabilised.

30. On 3 April 2019, a departmental Authorised Review Officer (ARO) reviewed the decision to raise and recover an Austudy debt of $29,501.16, stating:

    You were paid Austudy for the period 6 February 2017 to 19 November 2018 on the basis of being a full-time student. Whilst in receipt Austudy, you were sent letters advising you that your Austudy was based on full-time study and that if you stopped studying or changed your study details you should advise the department within 14 days.

    The department has received electronic and verbal information which verifies you are not a full-time student for the period 6 February 2017 to 19 November 2018. You did not advise the department of this within 14 days. This means you have been paid more Austudy than you are entitled to receive.

    From 6 February 2017 to 19 November 2018 you are paid a total of $29,501.16. Based on your actual circumstances, you should not have been paid any of this amount. This means you have a debt of $29,501.16.

    ……

    Taking into consideration the details I have available, I cannot find that your circumstances meet the required criteria to be considered unusual, uncommon or exceptional, to allow the waiver provision set out in section 1237AAD of the Act to be applied to the debt.

31. On 19 August 2019, the Social Security and Child Support Division of this Tribunal (the first tier) (AAT1) affirmed the decision of the ARO, finding that Mr Wain was overpaid $29,501.16 for the period from 6 February 2017 to 19 November 2018 as he was not a full time student during 2017 and 2018. The AAT1 found that there was no administrative error by Centrelink which had resulted in an overpayment to Mr Wain. The Member did not find Mr Wain was notionally entitled to NSA in the relevant period as they could not say with any degree of certainty that Mr Wain would have qualified for NSA. The Member found there was nothing to distinguish Mr Wain’s case from other similar cases determining special circumstances which did not warrant waiving recovery of the entirety of the debt.

32. On 3 October 2019, Mr Wain sought a review of the AAT1 decision by this division of the Tribunal, as he disagreed with the decision made, stating:

    I believe.the decision is incorrect and a different decision should be made, the information Centrelink which was missing.a lot of relevant documents I received the day before the hearing.

    And I believe a review should be undertaken as it will allow me to upload supporting documents– the last heading at that point I was in hospital so I didn’t get a chance to send you my supporting documents. I am now back at home and could forward these to you in support of my review. I believe will give me the opportunity to have the decision amended, I also believe another decision could be made under section 1237AAD special circumstances… [sic]

    THE ISSUES IN CONTENTION

33. The Tribunal needs to consider the following relevant issues:

    (a)whether Mr Wain was overpaid Austudy;

    (b)if so, is the debt recoverable; and if yes

    (c)should the debt be waived due to administrative error pursuant to section 1237A of the Social Security Act 1991 (the Act); or

    (d)whether special circumstances exist, such that the debt should be waived pursuant to section 1237AAD of the Act.

    RELEVANT LEGISLATION AND ISSUES

34. Section 568 of the Act outlines the general rules for qualification for an Austudy payment as:

    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.

35. Section 569 of the Act defines the Activity test as:

    (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).

    …

36. Section 569A of the Act outlines undertaking qualifying study as:

    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).

37. The Social Security Guide (the Guide) summarises the effect of the legislation in respect of Austudy observing that:

    3.3.3.10 Qualification for Austudy

    Activity test

    A person satisfies the activity test if they are undertaking qualifying study.

    …

    3.3.3.70 Austudy participation failures

    Summary

    Under social security law, a participation failure occurs when an Austudy recipient fails to either:

    comply with a requirement notified to them by the DHS, for example, for the person to attend a DHS office or to provide specific information, or

    satisfy the activity test, i.e. undertake qualifying study (1.1.Q.40), or

    comply with a requirement to undertake another activity, as required by DHS, in place of the activity to which the participation relates.

    However, in practice, if a student fails to satisfy the activity test, i.e. ceases undertaking qualifying study, they lose their qualification for Austudy. The payment may be cancelled, and/or the student may incur an overpayment, so the application of a participation failure would have no effect.

38. Section 68(2)(a) of the Social Security (Administration) Act1999 (Administration Act) empowers the Secretary to give a notice to a person to whom a social security payment (such as an Austudy payment) is being paid, requiring that person to inform the Department (Centrelink) if a specified event or change of circumstances occurs or is likely to occur. Section 72 of the Administration Act requires the notice be given in writing, personally, or by post, or in any other manner approved by the Secretary; specifies how the information is to be given by the person to the Department; and specifies when the information is to be given. Section 72(3)(b) of the Administration Act provides that a person must give the information required to be given under the section 68 notice within 14 days after the day on which the event or change of circumstances occurs; or the day on which the person becomes aware that the event or change of circumstances is likely to occur.

39. Section 1223 of the Act outlines how debts arise from lack of qualification, overpayment etc.:

    (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.

1. Section 1236 of the Act allows the decision-maker to write off a debt if:

   (i)the debt is irrecoverable at law; or

   (ii)the debtor has no capacity to repay the debt; or

   (iii)the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or 

   (iv)it is not cost-effective for the Commonwealth to take action to recover the debt.

2. Section 1237A(1) of the Act provides grounds for the decision-maker to waive recovery of any part of a debt. The Act provides that the decision-maker must waive a debt if it was attributable solely to an administrative error made by the Commonwealth and the debtor received the payments in good faith.

3. Section 1237AAD of the Act allows the decision-maker to waive all or part of the debt if they are 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, the Administration Act or the 1947 Act; and

   (b)these 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.

   THE TRIBUNAL’S CONSIDERATION AND FINDINGS

   Evidence before the Tribunal

4. The evidence before the Tribunal included documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents”.

5. Centrelink file notes record on numerous occasions that Mr Wain contacted Centrelink to indicate he was attempting to undertake full-time study but was unable to due to his ill health and that he also had family issues. Mr Wain advised the Tribunal that:

   (a)he never assumed or thought, because he was unwell, that he would be entitled to NSA or disability support.

   (b)he made numerous phone calls and responses to Centrelink. He would continuously get someone who was unable to provide the correct information. As he was hopeful he would be able to return to study, he was advised that if he could go back to study just to leave payments as they were.

   (c)he made contact after contact and was told continuously not to worry. He felt that it was completely disheartening. To be called a liar – it’s just not fair, as he was going off what Centrelink had told him to do.

   (d)he was always calling, to advise of his situation and seek help.

   (e)he cannot afford to pay back his debt and that he can barely pay for his medication.

   (f)he enrolled in the course in 2016 but that within the first two weeks of 2016, he was considerably unwell. He could not continue with his studies. He informed Centrelink he was suffering from mental health issues and chronic back injury.

   (g)it was difficult to know if would be able to go back to study or not.  He still cannot get out of bed most days. He wanted to return to study but he informed Centrelink that he was not well enough, and he was not sure from their end what they did. I was that unwell – I just informed them both that I couldn’t make it into class let alone get anything done.

   (h)he did not pay any fees for his course. He enrolled in the course in 2016 went for a short period (maybe 2 weeks). He did not attend in 2017. He would be confident to say that at the point of enrolment, he just made that assumption that ,being a two-year course, he thought that it would just carry over – that having enrolled in the course, he was not required to enrol each year and would remained enrolled in the course from 2016 until the course ended in 2018.

6. The Respondent asked Mr Wain the following during the hearing:

   R: Why did you not  lodge a claim for NSA, following contact with Centrelink on 24 August 2016?        

   A: I called the day before… the page next to it says customer uploaded medical certificate, requested NSA to be restored. It depends who I got on the day as to what was put in the system

   R: You said you never thought you were automatically entitled to DSP or NSA and knew you needed to make a claim?                    

   A: People at Centrelink informed me over and over, will I go back – I thought I could go back. I didn’t have an answer for if it would be two years. I got the feedback that I would stay on what I am on. I would have been on more money on NSA, it doesn’t make any sense to me…

   R: Records indicated you have gone and confirmed online that you were a full-time student on multiple occasions. How is it that you were able to do that, to confirm that you were a FT student, when your evidence is that you had not attended for a brief period in 2016?    

   A: Well because I was getting study allowance, and upon making calls and saying don’t change anything, I was making the assumption I was still enrolled, so I thought I was still a student regardless of whether I was attending or not. The only reason this came up was because – I don’t lie – I told someone in 2018, that this is the situation, I haven’t been able to study. She said I need to look into that and all of a sudden, I have this debt.

   R: Why were you recorded as possibly reducing or withdrawing when you gave evidence that you weren’t attending at all?   

   A: I was still enrolled, and I’ve been being told different things by different people…

   R: Why didn’t you lodge claim for NSA?       

   A: I thought because I was enrolled…

   R: Were you lodging claims and reporting while on NSA?   

   A: there was a 2-year period where I didn’t do anything, I would provide evidence that there was never a period apart from the 2-year period in dispute 

   R: There was not a period when you weren’t required to make fortnightly contact?

   A: Don’t put on me that I am lying – yeah I did report for a long period, but there was a long period where – there was a very long period where I didn’t have to make contact while they were assessing my DSP. It’s difficult to be able to let you know when I dealt with people who were nasty and horrible. I was too scared to go into Centrelink and they were aware of that

   R: In that period, from July 2013 to June 2016 – were you asked to look for work?

   A: No. had to go to a job provider occasionally and I met those requirements – I had to apply for jobs…

   R: But were you required?

   A: Yes

   R: Were you required to enter into job plans?

   A: When I saw it I was flabbergasted – I never saw it… it was signed on my behalf. That was the first time I was made aware of

   R: Of what?   

   A: That a job plan – that there was actual documentation that was printed out for you and that you had to agree to. Had no idea until last year

   R: You mentioned Matchworks. You were linked to Matchworks and attending appointments on a regular basis?

   A: Yes that’s who I was under. I had no idea what a job plan was. Had no idea I signed a job plan but yes I did apply for jobs or look for jobs.

7. The Tribunal asked Mr Wain the following:  

   T: What were you doing in those two years?

   A: Mostly lying in bed, my sister was dying of breast cancer. After going to the hospital for years, in 2019 I learned that because of my back injury, I would be in bed for days. I didn’t understand why I couldn’t do the things I did before. I was a mess.

   T: When was your sister unwell and when did she pass away?

   A: Diagnosed in 2015, within 2 weeks she was having investigation. Battled from 2016-May 2018 she lost her battle.

   T: You had been working, you went on NSA, you were looking for jobs, and you made a determination that you would go to study?

   A: I ceased work because I wasn’t able to. My mental health was starting to – my back was an issue. I didn’t understand why I couldn’t vacuum – didn’t compute with my brain. The decision to study, my dream was to be a director or screenwriter and I wanted to go back and follow on with that. I convinced myself I could be right. Quickly found out I wasn’t which was unfortunate.

   T: So when you enrolled, you envisaged you’d be there for 2016-2018?

   A: Yes. I see my GP every 3-4 weeks psychologist, psychiatrist. My doctor put me in for a priority referral to get into the clinic, I was on a wait list for 2 years. The pain management clinic taught me how to manage it. It was for a whole year. I came to terms with a lot of grief

   CONSIDERATION

8. The Respondent contended that Mr Wain received Austudy for the period 6 February 2017 to 19 November 2018 and that Mr Wain did not qualify for Austudy payments as he was not undertaking qualifying studies and did not pass the activity test.

9. Further, the Respondent contended that Mr Wain had failed to advise Centrelink from
   11 April 2017 that he was no longer a full-time student. The Respondent argued that Mr Wain had, on numerous occasions from 24 April 2017 to 7 February 2018, declared to Centrelink he was a full-time student undertaking studies at RMIT.

10. Mr Wain contended that:

    (a)He did not owe a debt to the Commonwealth as he had continually advised Centrelink he was unable to study because of his chronic back pain and mental health issues;

    (b)That he had acted upon Centrelink advice, which was to remain on Austudy as he intended to return to study; and

    (c)That he assumed for the period 2016 to 2018 he was enrolled as a student at RMIT and, regardless of whether he was attending study or not, he was entitled to receive Austudy payments.

11. Mr Wain argued that if he had pursued a claim for NSA he would have been better off as the payment is greater than Austudy. He contended that whilst not automatically entitled to NSA, he believed he would have qualified for the benefit as he had previously been in receipt of NSA.

12. Mr Wain argued that during this period, with the support of his treating doctors, he was pursuing a claim for DSP but did not assume he would qualify automatically and remained on Austudy as advised by Centrelink as he was enrolled full-time and hope to be able to return to study.

13. The Tribunal, in reaching the correct and preferable decision in this matter, considered the fundamental question of the requirements of the legislation. The legislation defines the activity test as requiring a person to be undertaking qualifying study, which is defined in the context of this application as a person who is enrolled in a course of education at an educational institution; or was enrolled in the course. And satisfies the Secretary that he 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.

14. The Act on one read would imply that so long as a student is enrolled, they qualify for Austudy regardless of whether they are in fact undertaking qualified studies. This interpretation of the Act would fit Mr Wain’s contention that he did not have a debt as Centrelink had been advising him to remain on Austudy. He argued that Centrelink’s advice had been that as he intended to return to studies he should remain on Austudy. Mr Wain had argued that whether or not he was in fact attending RMIT and undertaking his studies was irrelevant to his qualification to Austudy as he was considered to be enrolled for the debt period and therefore entitled to Austudy.

15. The Guide states that, in practice, if a student fails to satisfy the activity test, i.e. ceases undertaking qualifying study, they lose their qualification for Austudy. This interpretation of the Act was reiterated by Senior Member Fuller in the matter of Ardill and Secretary, Department of Family and Community Services [2000] AATA 274 where he found:

    8The short point in this case is whether or not Mr. Ardill satisfied the "activity test" of section 569 of the Act, after 20 November 1998. That is, throughout the period 20 November 1998 to 31 December 1998, was he undertaking qualifying study? The fact is that during the period under review he was not doing any study at all in relation to the course he had just completed. He was no longer doing the course.

    9It was submitted on behalf of the applicant that Mr. Ardill was still enrolled in the course after the examination period and that he remained enrolled in the course until 31 December 1998, or at least until his results were released.

    10There is no indication from Griffith University as to when that body regards a student as having ceased to be enrolled in a course.

    11The intent of student assistance legislation is to provide financial support for needy students while they are doing their study. It is provided so that they may concentrate on their studies without the distraction of having to find employment to survive. Once the course of study has been completed and the student is no longer undertaking study, there seems to be no rational basis for providing student assistance. The ex-student should then enter the job market or, if entitled, receive unemployment benefits.

    12The Tribunal finds that Mr. Ardill did not satisfy the "activity test" pursuant to section 569 of the Act after the last day of the examination period, namely Friday 20 November 1998 and consequently was not entitled to Austudy living allowance after 20 November 1998.

16. The Tribunal, in reaching a determination of whether Mr Wain did or did not have a debt to the Commonwealth, was not assisted by the lack of an academic transcript from RMIT which would have demonstrated whether Mr Wain was enrolled for the entirety of the debt period, as neither party submitted this information to the Tribunal. The only record of Mr Wain’s actual enrolment at RMIT was contained in a file note of 29 October 2018 which noted that matched data from RMIT indicated that Mr Wain enrolled and commenced study on 3 July 2017, ended on 17 November 2017 and attended no actual hours.

17. It would appear to the Tribunal that Centrelink, in reaching its determination that Mr Wain was not undertaking full-time studies, had relied upon the information from Mr Wain that this was the case. This should have been evident to Centrelink from the time Mr Wain applied for Austudy, as he clearly indicated on his application for Austudy payments he would not be able to undertake the full-time course load of his studies.

18. The Tribunal is sympathetic to Mr Wain’s argument that, as he believed he was enrolled for full-time study, he qualified for Austudy regardless of whether he was in fact undertaking full-time study and can understand Mr Wain’s confusion about his eligibility for Austudy as the Act would seem ambiguous on this point. The Tribunal could also well imagine Centrelink had provided Mr Wain advice that it was simpler to remain on Austudy until he recommenced with his studies. However, the Tribunal found the evidence from Centrelink records did not support Mr Wain’s contention he had been advised to remain on Austudy. Nor would this contention be borne out by the very concept of an Austudy payment. As in the matter of Ardill, it would appear to the Tribunal that Austudy is there to support someone whilst they are in fact undertaking qualified studies so they can concentrate on their studies and not be distracted by finding work. The payment of Austudy was not there for an individual simply because they had enrolled in a course.

19. The Tribunal found that Mr Wain had a debt to the Commonwealth as, by his own evidence, he had only attended RMIT for a short period of time and therefore he had not undertaken full-time qualifying studies. Therefore, he did not pass the activity test in the debt period and was not entitled to Austudy payment.

    Writing off the debt

20. The Tribunal, standing in the shoes of the Secretary, has the discretion to write off the debt under section 1236 of the Act.

21. The Respondent submitted Mr Wain’s debt could not be written off under section 1236 of the Act for the following reasons:

    (a)the debt was not irrecoverable at law;

    (b)Mr Wain had the capacity to repay the debt, as currently $20 is being deducted fortnightly from his Centrelink benefits;

    (c)recovery of the debt would not cause Mr Wain severe financial hardship; and

    (d)his whereabouts were known, and it was cost-effective for the Commonwealth to recover the debt.

22. Based upon the evidence before it, the Tribunal finds it is not reasonable to write off the debt under section 1236 of the Act as Mr Wain did not meet the requirements of the Act.

    Waiver the debt on the basis of administrative error

23. Under section 1237A of the Act, the Tribunal has a discretion to waive the right to collect the debt, if it was due solely to administrative error.

24. The Respondent submitted that the debt had not arisen as a result of administrative error, and consequently section 1237A of the Act was not satisfied. The Respondent argued that the debt had arisen through Mr Wain’s repeated failure to advise the Department he had withdrawn from full-time studies.

25. The Respondent referred the Tribunal to the case of Ward and Secretary Department of Families and Community Services [2000] AATA 212, where they contended Deputy President Forgie said of “solely” in section 1237A (1), referring to a judgement in Gerhardt v Department Employment, Education and Training [1997] FCA 815, that:

    47This means that the Secretary's duty to waive does not extend to those debts which are attributable to errors or other factors which are independent of the Commonwealth's administrative error. It makes no difference that those other errors or factors are minor. If those other errors or factors follow as a result of the Commonwealth's administrative error (i.e. they are incidental to the Commonwealth's error), then it may be that the debt is attributable solely to the Commonwealth's administrative error.

26. The Respondent then referred the Tribunal to the case of Sekhon vSecretary Department of Families and Community Services [2003] FCAFC 190, the Full Court of the Federal Court of Australia (the Full Court) said of “solely” in section 1237A(1) of the Act:

    35The ordinary or usual interpretation of the phrase `attributable solely to' is that it refers to the single or sole cause of the relevant act or event. The word `attributable' means `capable of being attributed'. It involves an objective assessment of causation. The words `a debt attributable solely to an administrative error' can be paraphrased as meaning that the only cause that objectively can be ascribed to the relevant debt is an administrative error. An example of this ordinary use of the equivalent phrase `solely attributable to' can be seen, for example, in Jahazi v Minister for Immigration and Ethnic Affairs (1996) 61 FCR 293 at 299-300 where the Court said:

    `...whether a particular causal connection between persecution and membership of a group attracts Convention protection will be resolved not merely by the logic of causality but as a matter of evaluation which has regard to the policy of the Convention. While it is not necessary that the fear of persecution be solely attributable to membership of a relevant social group, a decision-maker can have regard to the extent to which membership of the relevant group is a factor in the risk of persecution.' (emphasis added)

    36This is the meaning of the phrase which the primary judge purported to adopt and apply. He drew attention to the fact that the decision to issue the notice was a discretionary decision. This necessarily means that there was more involved in that decision than merely identifying that the pre-conditions for making it had been met. Although there was no evidence before either the Tribunal or the primary judge identifying the reasons for that discretionary decision, nevertheless the primary judge was correct to conclude that `the giving of the notice was not itself an administrative error', or at least there was no evidence that it was. Implicit within this conclusion is an acceptance by the primary judge not only that the legal pre-conditions for the issue of the notice were present, but also that there was no administrative error in respect of the policy considerations involved in that discretionary decision. Plainly enough the respondents have concluded not only that the pre-conditions specified in s 1166 of the Act have been met, but also that as a matter of policy the debt should be recovered from the appellant.

    …

    43Further, it is inappropriate to use a `but for' test to determine a sole cause. A `but for' test is a test to determine a cause – it is not a test for determining the sole cause: see the comparison drawn by Callinan J between the `but for' test and `solely caused' in I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 192 ALR 1 at 51-52 [210]. Indeed, even as a test to determine a cause, it is too broad for some purposes such as to establish causation in tort: see Gummow and Kirby JJ in Tame v New South Wales [2002] HCA 35; (2002) 191 ALR 449 at 501 [211].

1. Mr Wain contended that the debt was solely attributable to a departmental error and should be waived in its entirety as he had followed their advice to remain on Austudy as he was still enrolled and hoped to return to full-time study within the next two years.

2. The Respondent accepted that a portion of the debt incurred by Mr Wain for the period 6 February 2017 to 23 April 2017 is attributable solely to Commonwealth error, as Mr Wain had notified Centrelink he had deferred his studies but Centrelink continued to make payments to him.

3. However, the Respondent contends that the portion of the debt for the period 24 April to 19 November 2018 is not attributable solely to Commonwealth error as Mr Wain failed to notify Centrelink its records were incorrect despite him receiving numerous notices during this period. Additionally, Mr Wain had on numerous occasions during this period advised Centrelink he was undertaking full-time study at RMIT.

4. The Respondent contended it was open to the Tribunal to find that Mr Wain did not receive his Austudy payments in good faith, as he had been advised on 24 August 2016 and again on 22 September 2017 he would need to apply for another payment if he deferred his studies, he provided incorrect information to Centrelink on numerous occasions indicating he was a full-time student and had received numerous notices which all indicated he was a full-time student.

5. The Respondent argued that the Federal Court of Australia (the Federal Court) has found the term “good faith” in the Act does not denote any dishonesty, referring the Tribunal to the matter of Secretary, Department of Education, Employment, Training & Youth Affairs v Prince [1997] FCA 1565, where Justice Finn observed:

   In these circumstances it is appropriate that I express a view on one matter that might otherwise be thought to be a possible cause of complication in making a decision under s 289. It is this. It is clear in the present case that at all relevant times after 22 December 1993 Mr Prince actually knew that he had no entitlement to receive Austudy payments. Is the consequence of this that he could never claim that any of the payments he received from DEETYA as Austudy payments in 1994 were received in good faith even though at the time of receipt of the first three he was unaware that he had received the payment? In other words, can a receipt be otherwise than in good faith when the recipient is unaware that the payment has been received? The short answer to that in my view is "yes". Knowing that, in the relevant period, he had no entitlement to receive an Austudy payment, he was never in a position to be able to assert that any mistaken payment made to him was one to which he had an entitlement. Thus while he may have received a payment of which he was ignorant, he could not, in the sense that I have explained, have received it in good faith.

6. The Respondent referred the Tribunal to the case of Jazazievska v Secretary Department of Families and Community Services [2000] FCA 1484, where, they argued, the Federal Court further clarified the meaning of in good faith and considered whether a person who ‘turns a blind eye’ could be said to act in good faith. The conclusion of the court was:

   [44] A person does not act in good faith when a person turns a blind eye to circumstances which raised doubt as to entitlement of the person to receive and retain payment or refuses to make reasonable enquiries when doubt exists….

7. The Respondent also referred the Tribunal to the matter of Reardon and Secretary Department of Families and Community Services (2002) 67 ALD 420 where the Tribunal found that a failure to read notices amounted to a lack of good faith.

8. Mr Wain contended he had accepted the payment in good faith as he had acted in accordance with advice provided to him by Centrelink throughout this period, believing he was enrolled to study full-time and was entitled to the payment regardless of whether he was attending the course of not.

9. The Respondent accepted that if the Tribunal found Mr Wain had received the payment in good faith then they concede that the debt in respect of the period 6 February 2016 to 23 April 2017 must be waived under section 1237A of the Act.

10. The Tribunal was conflicted in regards of a finding of administrative error as the warning signs of Mr Wain’s inability to undertake full-time studies were apparent to Centrelink from the time Mr Wain applied, as he clearly stated he would not be able to undertake a full-time study load. Mr Wain sought to apply for sickness benefits some six months into his full-time course of studies, having already advised Centrelink he was no longer attending RMIT.  At no stage did Centrelink act on this information.

11. However, the Tribunal did not find that Mr Wain’s debt had arisen solely from administrative error as it is the recipient’s responsibility to notify Centrelink of any changes to their circumstances. There was one exception in this period where the Tribunal found Mr Wain’s debt was attributable solely to Commonwealth error, as Mr Wain had notified Centrelink on 18 January 2017 that he had deferred his studies, yet Centrelink continued to make Austudy payments to him. The Tribunal finds that Mr Wain’s debt should be waived for the period 6 February 2017 to 23 April 2017, as in this period Mr Wain advised on 18 January 2017 he had deferred his studies and then confirmed on 24 April 2017 he was still a full time student at RMIT.

12. The Tribunal found Mr Wain had received his Austudy payment in good faith, determining he had not set out to deceive Centrelink about his undertaking full-time studies. The Tribunal considered the evidence from Centrelink records confirmed Mr Wain had on numerous occasions contacted Centrelink to discuss his inability to attend to his studies because of his ill health. Nor did the Tribunal find Mr Wain was aware during the debt period he was not entitled to Austudy payments, finding Mr Wain had at all times believed he was entitled to Austudy payments.

13. The Tribunal did not concur with the Respondent’s view that Mr Wain’s failure to correct numerous letters from Centrelink indicating he was a full-time student or his confirming he was a full-time student indicate that he had not received the payment in good faith. The Tribunal found Mr Wain had a genuine belief he was entitled to Austudy payments as he was enrolled to study, was a full-time student and his records reflected this view. Additionally, the Tribunal accepted Mr Wain was suffering from chronic back pain, mental health issues and was impacted by his sister’s terminal illness and subsequent death in this period, which also clouded his ability to correctly address the administration of life.

14. As the Tribunal has found Mr Wain received his Austudy payment in good faith, it concurs with the Respondent that a portion of the debt incurred by Mr Wain for the period 6 February 2017 to 23 April 2017 is attributable solely to administrative error on the part of the Commonwealth and should be waived.

    Waiver of all or part of the debt in special circumstances

15. The Tribunal, standing in the shoes of the Secretary, also has the discretion to waive all or part of Mr Wain’s debt in special circumstances. For the discretion to be exercised, all three conditions contained in subsections (a), (b), and (c) of section 1237AAD must be satisfied.

    Knowingly

16. In order to waive part or all of the debt under section 1237AAD of the Act, the Tribunal must be satisfied that Mr Wain did not knowingly make a false representation to Centrelink or fail to comply with the relevant legislative provisions. The term ‘knowingly’ has not been defined in the Act, although it has been considered extensively by the Tribunal in similar circumstances.

17. In Re Callaghan and Secretary Department of Social Security (1996) 45 ALD 435, Deputy President Forgie said at [445]:

    There is nothing in section 1237AAD which suggests that the word “knowingly” should be given any meaning other than that a person has actual knowledge rather than constructive knowledge, that he or she is making a false statement or representation that he or she is failing or admitting to comply with a provision of the Act. The actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement or the act of omission.

18. In Re Anderson and Secretary, Department of Families and Community Services (2002) 69 ALD 494, the Tribunal stated at [496]:

    […] it is open to the Tribunal to infer that the applicant has actual knowledge of his obligations under the act while there are opportunities for that knowledge to be gained when there are no obstacles to him acquiring knowledge. In this case, the applicant has had the opportunity to gain an understanding of his obligations under the Act to the provision of advice letters to him from the respondent. The Tribunal is not aware of any obstacles that would prevent Mr Anderson from understanding those letters and gaining that knowledge.

19. The Respondent contended Mr Wain had knowingly made false statements on 24 April 2017, 24 July 2017, 30 October 2017 and 7 February 2018 in declaring he was a full-time student and that therefore the debt for the period 24 April 2017 to 19 November 2018 was properly raised.

20. The Respondent therefore contended that Mr Wain’s debt could not be waived under section 1237AAD of the Act as his debt had risen through his actions of knowingly making false statements on 24 April 2017, 24 April 2017, 30 October 2017 and 7 February 2018, when he declared he was a full-time student at RMIT.

21. Mr Wain argued he had kept Centrelink informed at all times of his health issues and family difficulties which were preventing him from continuing to attend his course and undertake his studies. He argued he was continually advised to remain on Austudy by Centrelink as he was hoping to return to full time studies.

22. Mr Wain took objection to the implication he had lied to Centrelink as he was of the firm belief that he was enrolled full-time at RMIT throughout this period and this was what he was confirming. Mr Wain contended that, during this period, he had not sought to reapply for NSA as he was enrolled to study, was pursuing a DSP claim and had not at any stage misled Centrelink about his circumstances.

23. The Tribunal finds that Mr Wain’s debt did not arise because he knowingly made false statements or declarations or omissions to Centrelink. The Tribunal finds that Mr Wain had not deliberately acted dishonestly or with any intention to mislead Centrelink. The Tribunal further finds that Mr Wain had assumed as he was enrolled to study full-time, he was therefore entitled to Austudy payments and that during this period Mr Wain had sought to engage with Centrelink to transition to another form of payment (both sickness and DSP) without success. Mr Wain had remained on Austudy as he believed this was the course of action recommended to him by Centrelink staff and Mr Wain’s advice to Centrelink that he was a full-time student during this period was based on his belief that, as he had enrolled in 2016 in a two-year diploma, he was a full-time student at RMIT during this period.

24. The Tribunal determined on all the evidence before it that Mr Wain had not knowingly made a misrepresentation to Centrelink or failed to comply with the relevant legislative provisions.

    Special circumstances

25. The expression ‘special circumstances’ has not been defined in the Act. However, the meaning of ‘special circumstances’ has been considered extensively by the Federal Court and the Tribunal.

26. In Ryde v Sec Department of Family and Community Services [2005] FCA 886, Branson J said at [26]:

    […] the evident purpose of s 1237AAD is to enable a flexible response to the wide range of circumstances which could give rise to hardship or unfairness, the statutory requirement for special circumstances discloses an intention to proscribe waiver in ordinary cases. The hardship or unfairness to which French J referred must be understood to be hardship or unfairness sufficient to justify departure from the general rule in the particular case.

27. In Groth v Secretary Department of Social Security [1995] FCA 1708, Kiefel J (as she was known then) said at [545]:

    […] for present purposes it is sufficient to observe that it requires something to distinguish Mr Groth’s case from others, to take it out of the usual ordinary case. That was, I consider, the only enquiry to be undertaken in this case. It would of course follow if one was to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.

28. The Respondent explored the extensive consideration in case law of the term ‘special circumstances’ and took the Tribunal to the matters of Re Predrag (Peter) Ivovic and Director-General of Social Services [1981] AATA 57, where the Tribunal stated:

    The reference to special circumstances 'by reason of which' a person liable 'should be released' requires, in our view, that there must exist in the circumstances of the case, a factor or factors which justify the making of an exception in whole or in part to the principle of liability which the Act otherwise establishes. In the exercise of the discretion which s.115(4A) confers, the decision-maker must have regard to whether, by exercising the discretion in a particular case, he will be achieving or frustrating ends or objects which are conformable with the scope and purpose of the Social Services Act 1947: cf. Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505 per Dixon J. Thus whilst keeping the dominant principle of s.115 in mind, he must nevertheless be prepared to respond to the special circumstances of any particular case by reason of which strict enforcement of the liability created by the section would be unjust, unreasonable or otherwise inappropriate.

29. The Respondent also took the Tribunal to the matter of Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114; (2007) 94 ALD 693, where Deputy President Forgie stated:

    80. Having said that, are Mr Davy’s circumstances such that they can be regarded as special circumstances? Centrelink sent the notices under s 68 having no reason to think that they reached other than their intended recipient. Events outside Mr Davy’s control have brought about his current circumstances. They are out of the ordinary but I do not consider that they are special circumstances within the meaning of s 1237AAD(b). The “special circumstances” are not merely directed to the person’s own circumstances. Rather, they are directed to those that are “special circumstances ... that make it desirable to waive”. That necessarily requires a consideration of the person’s individual circumstances but also a consideration of the general administration of the social security system. Waiver of the debt would mean that Mr Davy would have had the benefit of part of his DSP in circumstances in which he was not entitled to it. Certainly, he did not know that his father was giving him his own money but the fact that he was deceived by his father does not mean that it is desirable to waive the debt. He has had the benefit of the money and there is no injustice in requiring him to repay the money of which he has had the benefit but not the entitlement. His not knowing that his father had continued to receive the money does not take him outside the expectation that all social security recipients should repay money when they receive money but are not entitled to it. The system of administration of the SS Act does not visit any injustice for many if not all social security recipients but it did not lead to any injustice or unfairness on Mr Davy that is not visited, or potentially visited, upon all other recipients of social security payments under the Act. Therefore, I am not satisfied that there are special circumstances that make it desirable to waive the debt under s 1237AAD of the Act.

30. The Respondent took the Tribunal to the matter of Dranichnikov v Centrelink [2003] FCAFC 133, where the Full Court concluded the debt must be considered in the context of how it came about:

    66 To some extent the question whether there were special circumstances must depend on how it came about that the error occurred. Again that is not a matter to which the decision maker apparently averted. Other cases which have considered analogous words such as "special reasons" has tended to conclude, albeit in different contexts, that what is required will be circumstances which distinguish the case in consideration from the usual case. There will be a requirement that the circumstances are such that takes the case out of the ordinary: Jess v Scott (1986) 12 FCR 187 and the cases in various contexts in the decision which Lockhart, Shepherd and Burchett JJ discuss.

    67 It is possible to read the decision statement as suggesting that the present case was one incapable of falling within the words "special circumstances". If that is what was held, it would involve legal error. However, the real problem with the exercise of discretion under s 101 as with the mandatory provisions of s 97, is that the decision maker appears not to have considered at all what the circumstances were which gave rise to the overpayment. Whether those circumstances were or were not special will obviously be a matter for the decision maker when the factual circumstances have been ascertained.

    68 In my view the appeal should on this point be allowed and the matter remitted to the Secretary of Centrelink to determine whether the overpaid amount, otherwise a debt, was required to be waived, having regard to s 97 or whether the discretion under s 101 should be exercised.

31. The Respondent contended that:

    (a)given the circumstances of how the debt arose, Mr Wain’s circumstances were not special, and it was not desirable to waive his debt; and

    (b)Mr Wain’s debt had arisen as he had failed to notify Centrelink he was no longer a full-time student, he had failed to correct the notices supplied by Centrelink which indicated he was a full-time student and had failed to notify Centrelink he had not enrolled in 2018.

32. The Respondent accepts Mr Wain was suffering from numerous health complaints, including chronic back pain, anxiety and depression. However, in their view, these were not sufficiently unusual, uncommon or out of the ordinary to be described as special circumstances.  

33. The Respondent contended Mr Wain’s financial circumstances were not sufficiently unusual, uncommon or out of the ordinary to be described as special, arguing that Mr Wain – like many people in receipt of income support – can reasonably make repayments by way of deductions from his current JobSeeker payment. The Respondent argued that, unless Mr Wain was able to demonstrate that doing so would place him in financial hardship, the debt should not be waived and observed that Mr Wain had not demonstrated such financial strain. At the conclusion of the hearing, the Respondent requested Mr Wain supply a statement of his current financial circumstances. Mr Wain did not provide this information to the Tribunal for it to assess his current financial situation.

34. The Respondent conceded it was open to the Tribunal to accept the evidence that Mr Wain was told certain things by Centrelink officers, however the Centrelink file notes did not support this conclusion.

35. The Respondent contended that the Tribunal could not be satisfied that Mr Wain was notionally entitled to NSA in the debt period and argued that if Mr Wain had lodged a NSA claim, he would have been required to satisfy mutual obligations/activity requirements. This may have required him to look for work or required him to be engaged with a job network provider, and most likely would have required him to report to Centrelink on a fortnightly basis. As this had not been tested, it could not be argued he was notionally entitled to NSA.

1. The Respondent referred the Tribunal to numerous cases which have dealt with the issue of notional entitlement citing Oberhardt v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1923 where Justice Spender stated:

   32 The term "notional entitlement" is not defined in the Social Security Act, although it is used in s 1237AAC. In essence, the term refers to an unclaimed benefit; a benefit which was not actually claimed by the person, but to which that person would have been entitled had they applied for it. In this case, the appellant began claiming a disability support pension on 7 July 2005. Although she cannot now, or at any time in the future receive payments for periods prior to that date, it is contended that the appellant would have been eligible for the payment throughout the period during which she was being overpaid (11 February 2005 – 7 July 2005). She therefore had, during that time, a "notional entitlement" to the payment.

   62 The words in s 1237AAD(b) should not be fettered, or narrowed, in the manner argued for by the respondent and accepted by the Tribunal in this case.

   63 The view reflected by the Tribunal in Lyster, Huynh, Dobbie, Sara, and QX2006/1 referred to above, to the effect that notional entitlement is not necessarily excluded in considering whether "special circumstances" exist, for the purposes of s 1237AAD, is correct.64 It follows that, in my view, notional entitlement should not be excluded from the range of available relevant considerations in deciding whether there are "special circumstances" to waive a debt under s 1237AAD.

   65 The Tribunal’s conclusion to the contrary, expressed in the first two sentences of [48] of its reasons, is wrong.

   66 In the present case, the Tribunal’s reasons further appear to show that notional entitlement was considered, and rejected, as a basis, on its own, for concluding that special circumstances existed; so much was accepted by Counsel for the respondent in his submissions. This conclusion was in response to the principal argument put to the Tribunal by the appellant.

   67 The Tribunal does not, however, appear to have considered notional entitlement as one of a range of factors applicable to the applicant that could, together, amount to special circumstances.

   68 In oral argument, Mr Rangiah, counsel for the respondent, submitted that the reason for this was that the Tribunal considered the matter should not be given any weight in the circumstances of the case. The Court was asked to infer from the Tribunal’s opinion that "The notional entitlement of the Applicant ... is not sufficiently unusual, uncommon or exceptional as to justify special circumstances waiver", that the Tribunal did in fact consider the appellant’s notional entitlement within the range of relevant factors going to special circumstances, but gave it no weight, and for that reason it was unnecessary to mention it specifically.

   69 In my opinion, following its conclusion that notional entitlement could not of itself amount to special circumstances, the Tribunal did not mention notional entitlement as one of a range of relevant considerations, simply because it did not consider it relevant. It follows that, in my judgment, the Tribunal misdirected itself in deciding whether special circumstances existed for the purposes of waiver under s 1237AAD of the Social Security Act. Ground one of the Notice of Appeal has therefore been made out.

2. The Respondent referred the Tribunal to the matter of Kalpouzos and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 91, where Member Fice (as he was then known) found:

   As I understand Spender J, to have a notional entitlement means an applicant must qualify in every respect for the benefit sought, save only that no application has been lodged with Centrelink.

   Ms Kalpouzos submitted that she would in any event have been entitled to NA after 25 July 2005. However, in order to be qualified for NA, an applicant must satisfy the activity test (s 593 of the Act). Section 601 sets out the activity test for the purposes of NA and it requires an applicant to be actively seeking and willing to undertake paid work in Australia. There was no evidence before me that Ms Kalpouzos was actively seeking work in the period between 25 July 2005 and 30 March 2005. Therefore, Ms Kalpouzos could not have qualified for NA during the period she was overpaid YA. It follows that Ms Kalpouzos is not entitled to waiver of the debt or any part of it by reason of s 1237AAD of the Act on the ground of a notional entitlement to NA.

   As I understand Spender J, to have a notional entitlement means an applicant must qualify in every respect for the benefit sought, save only that no application has been lodged with Centrelink.

   Ms Kalpouzos submitted that she would in any event have been entitled to NA after 25 July 2005. However, in order to be qualified for NA, an applicant must satisfy the activity test (s 593 of the Act). Section 601 sets out the activity test for the purposes of NA and it requires an applicant to be actively seeking and willing to undertake paid work in Australia. There was no evidence before me that Ms Kalpouzos was actively seeking work in the period between 25 July 2005 and 30 March 2005. Therefore, Ms Kalpouzos could not have qualified for NA during the period she was overpaid YA. It follows that Ms Kalpouzos is not entitled to waiver of the debt or any part of it by reason of s 1237AAD of the Act on the ground of a notional entitlement to NA.

3. The Respondent also referred the Tribunal to the matter of PZHC and Secretary, Department of Social Services (Social services second review) [2015] AATA 762, where Member Alexander came to a contrary view to those expressed above, stating:

   In Re Wilson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 154 Deputy President Hack stated the following:

   [16] The term “notional entitlement” is somewhat of a misnomer because it would be impossible for Ms Wilson to now establish that she was qualified for Newstart allowance between May 2007 and May 2008 and, in particular, to establish that she was seeking to engage in employment and undertake activities required by Centrelink and suchlike. Notional entitlement, in this context, is no more than a recognition of the high probability that Ms Wilson would have applied for, and been granted, another equivalent benefit from the date of removal of S from her care, had she notified Centrelink of the fact of the removal. Here Centrelink was notified on 8 May 2008 that S was in the care of the Department of Family and Community Services. Ms Wilson’s parenting payment and family tax benefit was cancelled with effect from that date. On 16 May 2008 Ms Wilson claimed Newstart allowance. It was granted with effect from that date. In early December 2008 she went on to disability support pension. There is, therefore, every reason to suppose that Ms Wilson would have applied for, and been granted, Newstart allowance on and before 29 May 2007 had she notified Centrelink on the day of the removal of S from here care.

   ...

   [19] I am satisfied that there are, in Ms Wilson’s case, special circumstances that make it desirable to exercise the discretion to waive all or part of the debt...

   In a document provided by the Respondent after the hearing the equivalent Newstart allowance for the four debt periods was calculated to be $20,155.08, which is almost the same as the total debt for those periods.

   On consideration of the evidence before the Tribunal I am satisfied that there is every reason to suppose that the Applicant would have applied for and been granted Newstart allowance on 4 March 2010 if he had notified Centrelink that he had withdrawn from his TAFE course.

   In adopting the approach used by Deputy President Hack in Wilson I am of the view that the likelihood that the Applicant would have received a similar benefit supports a conclusion that his circumstances were out of the of the ordinary.

4. The Respondent contended Mr Wain’s circumstances could be distinguished from others, as he was aware that he had to test his eligibility for NSA as suggested to him by Centrelink. Arguing that that Mr Wain had consciously chosen not to make a claim for NSA, the Respondent argued that, given these circumstances, it was not appropriate for the Tribunal to taken into account notional entitlement in respect of Mr Wain’s claim.

5. The Respondent argued that, even if the Tribunal rejected their argument and found Mr Wain’s circumstances amount to special circumstances, it did not follow automatically that the Tribunal should make a direction to determine how much (if any) of the debt to waive, as the exercise of the waiver is discretionary. The Respondent argued the Tribunal, in this case, should exercise its discretion not to waiver Mr Wain’s debt.

6. Mr Wain maintained his circumstances were indeed special because he was suffering from chronic back pain and had been waiting two years to attend a pain management clinic. He had serious mental health issues which made day-to-day activities extremely complicated. During this period, he was dealing with his sister’s terminal illness from her diagnosis to watching her suffer to her premature death. Mr Wain advised this was completely overwhelming as he was very close to his sister and most days in this period, he could not even manage to get out of bed.

7. Mr Wain argued his circumstances were indeed special as he is suffering significant financial hardship and is currently unable to survive on his Centrelink benefits, not being able to afford his medication at times. He argued that this debt amounted to him being in receipt of no income in this period, that notionally he would have been entitled to NSA for the period which is paid at a higher rate than Austudy.

8. Mr Wain contended his circumstances were special as Centrelink had contributed to his debt position as they had advised him to stay on Austudy payment during the period, as he was enrolled to study and intended to return to follow time study in the next two years.

9. The Tribunal, based upon the evidence before it, finds that Mr Wain’s circumstances as a whole were sufficiently unusual, uncommon or exceptional so as to make his case different from the ordinary and were otherwise special. Mr Wain’s circumstances did satisfy section 1237AAD(b) of the Act as Mr Wain has obvious health issues, both physical and mental. The impact of his sister’s terminal illness and his difficult financial situation were out of the ordinary for a recipient of Austudy. Mr Wain’s obvious health issues are the very impairments which generally lead to an individual being found to be eligible to receive the DSP and, whilst not out of the ordinary for a DSP recipient, they are for someone receiving Austudy and are considered by the Tribunal to be special in this case.

10. The Tribunal considers that Mr Wain had a notional entitlement to NSA in this period and whilst he had not tested his eligibility for the payment, he had previously been in receipt of the payment and exempted from the work activity test based on his medical condition. Given the Respondent’s acceptance of Mr Wain’s medical condition, the Tribunal concluded he would have continued to be exempted from the activity test and would have qualified for the NSA. Additionally, during this period, Mr Wain was testing his eligibility for DSP. The common practice is for Centrelink to exclude applicants from undertaking job-seeking activities whilst a DSP review is underway and again the Tribunal concludes that this would have been the case for Mr Wain. Again, based on this, he would have qualified for the NSA.

11. Additionally, the Tribunal found that Mr Wain’s numerous requests to transition from Austudy to another form of payment during the debt period had not been assisted by himself or Centrelink and this debt would amount to Mr Wain being in receipt of no payment or income of any form in this period.  The social security system exists to ensure all in our society have some form of benefit on which to survive and, given Mr Wain’s history of social security payments, it would appear to the Tribunal he would have been entitled to some form of payment in the period.

12. The Tribunal, having considered all the evidence placed before it, finds that Mr Wain’s medical condition, family situation, financial stress and his notional entitlement to NSA made his situation unusual, uncommon and exceptional, markedly different from the usual run of cases, special, and out of the ordinary, making it desirable to waive the portion of his debt not attributable to administrative error.

    DECISION

13. The Tribunal sets aside the decision under review and remits the matter to the Respondent with the following findings:

    (a)a portion of Mr Wain’s debt is attributable solely to administrative error during the period 6 February 2017 to 23 April 2017 and should be waived; and

    (b)Mr Wain’s situation was out of the ordinary and these special circumstances (other than financial hardship alone) made it desirable to waive the reminder of his debt.

I certify that the preceding 113 (one hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Ms A E Burke, AO Member

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

Associate

Dated:  27 May 2021

Date of hearing:	21 January 2021
Date final submissions received:	5 March 2021
Advocate for the Respondent:	Mr Cameron Munro
Solicitors for the Respondent:	Department of Human Services Freedom of Information & Litigation Branch