Weissgerber; Secretary, Department of Family and Community Services

[2004] AATA 1225

Administrative

Appeals

Tribunal

 

DECISION AND ORAL REASONS FOR DECISION [2004] AATA 1225

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2004/79

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And ANTHONY DAVID WEISSGERBER

Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date10 November 2004

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

(Signed)

WJF PURCELL
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Youth Allowance – overpayment – grounds to warrant the waiver or write-off recovery of the debts – special circumstances –decision affirmed

Social Security Act 1991 s 1237AAD

Social Security (Administration) Act 1991 s 180

ORAL REASONS FOR DECISION

10 November 2004   Senior Member WJF Purcell

1.      This is an application for review of a decision of the Social Security Appeals Tribunal (the SSAT) of 29 January 2004, which set aside the decision of an Authorised Review Officer, to raise and recover debts of $6,343.46 (for the period 18 November 2001 to 28 July 2002), and $2,909.25 (for the period 29 July 2002 to 10 December 2002).  The SSAT substituted a new decision that the debts be affirmed, but that the outstanding balances of the debts, as at 22 January 2004, be waived due to the special circumstances of the case.  The Department has decided now, to shorten the debt period, pursuant to s 180 of the Social Security (Administration) Act 1991.  The first period is from 28 February 2002 to 28 July 2002, and the debt is $3,854.66.  The second period is from 29 July 2002 to 20 October 2002, and the debt is $1,810.20.

2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), together with exhibits tendered by the respondent.  Mr Kilderry represented the applicant (the Department).  Ms Riley appeared for the respondent, who gave oral evidence.

3.      The respondent is a 24 year old single man.  In November 2001, he enrolled in a Bachelor of Science degree at the University of Adelaide (the University), through the adult re-entry program, with the intention of commencing full-time study in the first semester of 2002.  He says that he believed that he had enrolled in the first year of that course as a full-time student.  He was issued with a “full-time” student identity card by the University.  He advised Centrelink of his study intentions on 20 December 2001.  Centrelink paid him Youth Allowance on the basis that he was a full-time student, and accepted the student identity card as evidence of his full-time status.

4.      The respondent withdrew from the Bachelor of Science course in October 2002.  On 19 November 2002 a decision was made to raise and recover a debt of $6,343.46, and on 13 March 2003 the second decision was made to raise and recover a debt of $2,909.25.  An Authorised Review Officer affirmed the delegates’ decisions on 7 August 2003, and on 29 January 2004 the SSAT made the decision under review.

5. The SSAT considered that the primary error was committed by the staff at the University, but that Centrelink should have required documentary evidence of the respondent's study load, before paying him Youth Allowance. The SSAT was of the view that the debt occurred partly as a result of Centrelink error, but not as a result of sole administrative error. It decided that in the special circumstances of the matter, the debt should be waived in accordance with s 1237AAD of the Social Security Act 1991 (the Act) which provides:

“The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

(a)the debt did not result wholly or partly from the debtor or another person knowingly:

(i)        making a false statement or a false representation; or

(ii)failing or omitting to comply with a provision of this Act or the 1947 Act; and

(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and

(c)       it is more appropriate to waive than to write off the debt or part of the debt.”

6.      The Department maintains that Centrelink's reliance on the student identity card was not an administrative error on its behalf.  The errors were on behalf of the University and the respondent.  The SSAT took into account the fact that there was no element of "double dipping" into public funds during the respondent's time at University in 2002.  The Department maintains that this is not a significant circumstance in the context of "special circumstances".  This would run counter to propositions behind Social Security legislation to ensure that only those people who are genuinely entitled to income support receive it.

7.      The respondent submits that at all times he understood he was a full‑time student; he left home in 2000, and has been looking after himself ever since; and has been without parental guidance or support.  He relied upon Centrelink to correctly ascertain his eligibility for Youth Allowance; and in his personal circumstances in December 2001 through to February 2002 he was not functioning well enough to ask the right questions, because he was not aware that there was anything he should have done differently.  Ms Riley provided carefully prepared written submissions, and expanded upon these in her oral submissions, all aspects of which I have taken in to account.

8.      The respondent, who had not obtained his tertiary entry requirement (TER), at the end of his high school years, enrolled at TAFE in 1998, and completed his special tertiary admission test (STAT) in late 2001.  As he was then 21 years of age, he was able to enrol at University as a mature student.  He wanted to obtain a Bachelor of Science degree, and enrolled in two subjects, mathematics and physics.  The University issued him with a student identity card as a "full-time” student, and he believed that he was a full-time student, unlike TAFE where "they almost hold your hand".  There was no student adviser - the student was expected to know what to do, and to arrange affairs accordingly.  It was very overwhelming.  He was too shy and nervous to ask questions, in effect, he just filled in the forms, and provided Centrelink with the information.  I accept his evidence that at no time did Centrelink query his eligibility as a full-time student.  He said in evidence that he found the University study so much harder than at TAFE; that these two subjects were as difficult as four TAFE subjects.

9.      The respondent outlined in his evidence a family history including violence by his step father.  It is not possible for me to describe these circumstances in detail in these brief Reasons for Decision.  Suffice it to say that I accept that the respondent left home in 2000 because of difficulties with his step father, and that he lived in some six to eight different homes/flats over the next 2 years.  The home he was living in whilst at University belonged to a friend of his uncle.  It was undergoing renovations, and half the home was without a roof.  I consider that without the parental support most students take for granted, he was fending on his own - and life was very difficult.  He has been in full-time employment since August 2003, and has repaid to the Department $1,529.20 of the debt.  He will sit for his STAT on 20 November 2004, and wants to enrol, on a full-time basis, at the University in a combined Education/Bachelor of Arts course.  I was informed by Ms Riley that the science course he undertook in 2002 is not an award course, and not covered by the HECS scheme.  He is subject therefore to a University debt of $2,560 (being $640 per subject per semester) which will be “activated” when he enrols in his full-time course in 2005. 

10.     I do not consider Centrelink's reliance on the student identity card to be an administrative error.  The card was issued by the University.  There was nothing on the face of it to indicate the card was not genuine, nor that the respondent was not a full-time student.  This acceptance however, has led to the respondent being paid an allowance as a full‑time student to which he was not entitled.  There is no question but that the respondent received the allowance in good faith.

11.     It is clear on the evidence that the respondent, in the past, had adjusted his student case load to comply with the Youth Allowance guidelines.  I accept that had he been alerted, by anyone, to the fact that he was not qualified as a full-time student, he would have been able to enter in to an Activity Agreement, and satisfy the qualifications for payment of Youth Allowance, on the basis that he was a part-time student.

12. In my view, the University’s error in providing the student identity card, and Centrelink's reliance upon it, together with the applicant's naive unquestioning acceptance of the situation, and his receipt of the payments in good faith, is a most unusual situation. As a part‑time student, he could have been eligible for payment of the Youth Allowance subject to an Activity Agreement. He has repaid $1,529.20 of the debt; and faces a further University debt of $2,560. The SSAT decided that recovery of the balance of the debt, as at 22 January 2004, should be waived. I consider on the whole of the evidence that the respondent's circumstances are so unusual and special that the discretion provided in s 1237AAD of the Act, should be exercised in his favour.

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

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

Signed:         .....................................................................................
  Associate

Date of Hearing  10 November 2004
Date of Decision  10 November 2004
Counsel for the Applicant         Mr R Kilderry
Solicitor for the Applicant          Service Recovery Team
Counsel for the Respondent     Ms M Riley
Solicitor for the Respondent     Welfare Rights