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

[2016] AATA 362

Zivkovic and Secretary, Department of Social Services (Social services second review) [2016] AATA 362 (22 April 2016)

Division	GENERAL DIVISION
File Number	2015/2322
Re	Stephen Zivkovic
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member N A Manetta
Date	22 April 2016
Date of written reasons	1 June 2016
Place	Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal:

1.    Sets aside the decision of the Social Security Appeals Tribunal dated 5 May 2015;

2. Substitutes a decision that the fail grades Mr Zivkovic received in three subjects in 2001, one subject in 2012, and one subject in 2013, be disregarded for the purposes of calculating his entitlement to Austudy pursuant to section 569H(7)(b)(i) of the Social Security Act 1991.

3.    Directs the Respondent to calculate the unexpired period of Mr Zivkovic’s entitlement to Austudy given paragraph [2] of this order; and

4.    Directs the Respondent to reinstate Austudy payments to Mr Zivkovic with effect from 7 July 2016 (and to expire at the end of the unexpired period calculated in accordance with para [3] of this order).

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

Senior Member N A Manetta

CATCHWORDS

SOCIAL SECURITY - Austudy allowance – activity test - undertaking qualifying study – progress rules – tertiary students – whether applicant had used up allowable study time – whether failed part years of study should be disregarded “because of” applicant’s illness – held they should be disregarded

LEGISLATION

Social Security Act 1991 (Cth), ss 568, 569A, 569H

CASES

Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193

Re Sim and Commonwealth of Australia (1986) 5 AAR 89

REASONS FOR DECISION

Senior Member N A Manetta

1 June 2016

1. After delivery of my oral decision, I received a request for written reasons, which I now publish.

2. This is an application by Mr Stephen Zivkovic seeking review of a decision of the Social Security Appeals Tribunal (or SSAT) dated 5 May 2015.  In that decision, the SSAT approved an earlier decision taken in the respondent’s Department to discontinue Mr Zivkovic’s Austudy allowance payable to him under the Social Security Act 1991 (the Act).  At the hearing before me, Mr Zivkovic represented himself; Mr Parker appeared for the respondent.

3. For Mr Zivkovic’s benefit, I shall explain my reasons as simply and briefly as possible. 

   BACKGROUND FACTS

4. The salient background facts may be stated as follows. Mr Zivkovic, who is 47 years of age, completed his secondary schooling in Adelaide in 1986.  He then enrolled in an Associate Diploma of Arts and Liberal Studies degree at the South Australian College of Advanced Education.  He completed these studies in 1989.  He was unemployed for three to four years after that but developed an interest in working in the media.  He worked part-time in a second-hand bookshop and established in 1995 a science-fiction video rental store, first on Greenhill Road and then in Gawler Place, Adelaide, with assistance under the federal New Enterprise Incentive Scheme.  Whatever its initial prospects, the business has not fared well in recent times, with video rental shops now facing a steady decline.

5. In 2011, Mr Zivkovic enrolled in a degree with Open Universities Australia, which he could complete remotely as I understand matters.  At first, he enrolled in a business degree.  He received Austudy in connection with his enrolment.  Mr Zivkovic gave evidence, which I accept, that he found some of the subjects in the first year of the course interesting and others less so.  He failed three subjects and passed five.  Mr Zivkovic attributed the three fail grades to his lack of interest in the subject matter together with the consequences of depression, with which he was diagnosed in 2009 and which, according to his evidence, was getting worse in 2011.  He also gave evidence of suffering from OCD, or obsessive-compulsive disorder, a condition he says he has suffered since childhood.

6. In 2012, he switched degrees and started an Internet Communications degree, which he said suited him better.  He still failed, he said, one subject in 2012 and one in 2013 due to his depression and OCD.

7. Mr Zivkovic gave evidence that Centrelink had informed him that it would end Austudy in the middle of 2014, but that the benefit would be extended if he enrolled in an on-campus degree.  He enrolled in a Bachelor of Media degree at Adelaide University and received some credit for the subjects he had already studied and passed.  Mr Zivkovic complains that he was told his Austudy would be extended to 2017, but in early 2015, Centrelink cancelled his allowance.

   MR ZIVKOVIC’S SUBMISSION

8. My understanding is that Mr Zivkovic accepts that Centrelink would have been entitled to cancel his study allowance when it did but for two factors which he says ought to have persuaded it not to proceed to cancellation.  First, Mr Zivkovic says he was promised an extension of his Austudy benefit to 2017 but did not receive it; secondly, Mr Zivkovic points to his depressive illness[1], which he says caused his failure in subjects in 2011, 2012, and 2013.  His Austudy should be recalculated and reinstated in respect of these part-failed years.

   CONCLUSIONS

   [1] Coupled with his OCD.

   Estoppel

9. I now turn to each of these arguments.  Mr Zivkovic asserts the existence of a promissory estoppel - he used this technical expression in his submission - and claims his Austudy allowance ought not to have been revoked given the representation he says was made to him.  I do not accept his argument here.  As a general rule, and in simple terms, a representation by a government official cannot override an inconsistent statutory requirement.[2]  In this case, it is clear that Mr Zivkovic’s Austudy was finite and would in the normal course of events expire approximately three and a half years after it was first paid.  A disappointed representee/promisee is left in this circumstance with an action for common law damages for any loss proven to have been caused by reliance upon the incorrect information.  I appreciate this may be small comfort for Mr Zivkovic, but nevertheless it is the ordinary rule.  I need not set out the legal requirements for the legal action and I make no comment on whether Mr Zivkovic would satisfy them.

   [2] It is sufficient to refer to the well-known dicta of his Honour Justice Gummow (as he then was) in the Federal Court in Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, at 207ff.  

   Depression as a contributing factor to his fail grades

10. I turn now to Mr Zivkovic’s second argument. Mr Zivkovic points to s 569H(7)(b)(i) of the Act. This section provides that in determining whether a person has exceeded the allowable study time, a failed year of study, or a failed part-year of study, is to be disregarded if the failure is “because of” the recipient’s illness.

11. The critical statutory criterion here is failure “because of” a person’s illness.  The expression because of connotes causation.  The test of causation that appears most appropriate here is the “but for” test; that is, one must ask whether Mr Zivkovic’s subject failures would have occurred in any event (that is, in the absence of illness).  The illness need not be a sole contributor to the failures but, if the failures are to be disregarded, it must be said that they would not have occurred if there had been no illness.

12. Mr Parker pointed in this connection to the uncertain conclusions in a report from a psychologist Mr Zivkovic had tendered[3].  The author, Ms Suter, was asked two questions by the Australian Government Solicitor’s Office.  She refers in the course of her response to Mr Zivkovic’s diagnosis with major depression in December 2010 by his GP, Dr Elsley.  She considers it likely that Mr Zivkovic was struggling with chronic symptoms of depression in 2011.  She was asked specifically whether in her opinion Mr Zivkovic failed any of the three subjects in 2011 “because of” his depression.  Her response was, in part, as follows:  

    “It is not possible to determine direct causality between Mr Zivkovic’s illness and failing subjects in 2011.  However it is likely that his mental illness impacted upon his performance and ability to study.  Mr Zivkovic reported reduced motivation and energy, lethargy and tearfulness, rigid and negative thought patterns, and low confidence/self-esteem.  Such symptoms are associated with difficulties in occupational tasks.

    In addition to the symptoms displayed at the onset of treatment, Mr Zivkovic also reported that he experienced a severe relapse of Major Depression during the period between the fourth and fifth session (sometime between March 2011 and August 2011).  Mr Zivkovic stated that his depression was so severe that he was unable to get out of bed at times.”

    [3]  Exhibit A1.

13. Mr Parker pressed me with a submission that, as Ms Suter was not able to point to a “direct causal” link, it cannot be concluded that, but for his depression, Mr Zivkovic would have passed the three subjects he failed.  He points here to Mr Zivkovic’s admission that the three subjects he passed were of limited interest to him.  Mr Zivkovic, for his part, submitted that his depression and his lack of interest acted in concert, so to speak, and caused him to fail.

14. I have not found the question easy, but I have decided that Mr Zivkovic’s depression did cause him to fail the three subjects in 2011 in the sense that he would have passed the subjects but for his depressive disorder.  It is not necessary for a court, or a tribunal, to have before it a specialist opinion that says that in the practitioner’s opinion a particular outcome was more likely than not the consequence of a medical condition before the court or tribunal finds that to be the case.  I do not intend to traverse the authorities in the course of this oral decision.  I do note, however, that there is a useful discussion of the relevant authorities and principles in this Tribunal’s decision in Re Sim and Commonwealth of Australia (1986) 5 AAR 89, especially at pp 95-98.[4]

    [4]  I do not think there has been any change in approach in the years following this decision.

15. Ms Suter’s report does allow for the possibility of Mr Zivkovic’s depression having caused him to fail the three subjects in question.  Despite Mr Parker’s submission, I do not understand her to deny that possibility.  I found Mr Zivkovic’s own evidence to be honest and reliable.  He did not resile from the fact that he found the subjects he failed of limited interest, but he was clear about the impact of his depression.  I am entitled to have regard to that evidence, which I accept, in conjunction with Ms Suter’s professional opinion.  In all the circumstances, I am satisfied that Mr Zivkovic did fail three subjects in 2011 as a result of his depressive illness in the sense that he would not have failed them but for his depressive illness.

16. I have more difficulty in respect of the subjects Mr Zivkovic failed in 2012 and 2013.  It is clear from Mr Zivkovic’s evidence that his depression was particularly severe in 2011.  He maintained it persisted in 2012 and 2013.  I accept that evidence.  Indeed, the evidence before me suggests he still has a problem today with depression: he is currently taking antidepressant medication.  Nevertheless, I acknowledge I have no professional opinion before me confirming the severity of the depression and its likely effect in 2012 and 2013 as opposed to 2011 (as Ms Suter was not asked this question).  A reasonable and sensible approach by an administrator, however, would be to accept that the depression was likely to have continued to “impact upon Mr Zivkovic’s performance and ability to study”[5] in 2012 and 2013.  Standing in the shoes of the administrator, I am prepared to do the same on this occasion.  I think it reasonable to infer that but for the illness, the subjects in question would not have been failed.

    [5] To use Ms Suter’s phrase.

17. It follows in my opinion that Mr Zivkovic is entitled to have his part-year failures in 2011, 2012, and 2013 disregarded and his Austudy reinstated.

    FORMAL DECISION

18. After announcing my reasons in the Tribunal, I put to the parties a draft order that, in accordance with Mr Zivkovic’s preferences, would allow for reinstatement of his Austudy allowance as of July 2016 for a limited period.  The Respondent advised that the terms of the draft order were not opposed, and I proceeded to make the order. 

I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta

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Administrative Assistant

Dated 1 June 2016

Date(s) of hearing	1 & 22 April 2016
Applicant	In person
Advocate for the Respondent	Mr A Parker
Solicitors for the Respondent	Department of Human Services